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Seehawer v. McMinnville Water and Light

United States District Court, D. Oregon, Portland Division

March 15, 2019

CHRISTOPHER SEEHAWER, Plaintiff,
v.
MCMINNVILLE WATER & LIGHT, Defendant.

          OPINION AND ORDER

          JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE

         Introduction

         Plaintiff Christopher Seehawer ("Seehawer") filed this lawsuit against defendant McMinnville Water & Light ("MWL") under Title VII of the Civil Rights Act ("Title VII"), the Federal Family Medical Leave Act ("FMLA"), and the Americans with Disabilities Act of 1990 ("ADA"). Seehawer alleges discrimination from a hostile work environment due to alleged sexual harassment by coworkers; retaliation for reporting or opposing the harassment; interference, discrimination, or retaliation for using protected FMLA leave; and failure to engage in the interactive process required upon a reasonable accommodation request and subsequent wrongful termination based on an actual or perceived disability. Currently before the court is MWL's Motion for Summaiy Judgment. (Def. 's Mot. for Summ. J. ("Motion"), ECF No. 29.) Because no genuine issue of material fact exists as to Seehawer's Title VII and FMLA claims, MWL's motion for summary judgment is granted on those claims. However, because a question of fact exists as to Seehawer's ADA claims, MWL's motion for summary judgment on those claims is denied.[1]

         Background

         Seehawer is a heterosexual male who asserts he is a "qualified individual with a disability, including but not limited to depression and suicidal ideation," which MWL denies. (Compl., ECF No. 1, ¶ 9; Def.'s Reply, ECF 45, at 11.) From 2004 until the termination of his employment in April 2015, Seehawer worked for MWL, a municipal utility provider in McMinnville, Oregon, first as a meter reader and then as a water distributor operator on a water crew. While a member of the water crew, Seehawer performed his duties with other MWL employees, including Bobby Huber ("Huber"), Mike McGanty ("McGanty"), and "leadman" MarkKnutz ("Knutz"). (Compl., ¶ 12, 13.) Seehawer's direct supervisor was Robert Klein ("Klein"), and Seehawer received performance evaluations from both Klein and another supervisor, Terry Olson ("Olson"). (Dep. of Christopher Seehawer ("Seehawer Dep."), ECF No. 38-1, at 74:24 -75:2, 75:3-7).[2] Kern Can- ("Carr") was the general manager of MWL from approximately November 2011 (Dep. of Kem Carr ("Carr Dep."), ECF No. 38-2, 8:8-10, 10:2-4, 15:14-16.)

         MWL has written, published policies concerning workplace sexual harassment in its Employee Handbook ("Policy"). (Decl. of Kem Carr, ("Carr Decl."), ECF No. 31, ¶¶ 4, 5.) Seehawer acknowledged that he received, read, and understood the handbook upon his hire in 2004, and the updated Policy in 2010. (Id. at ¶¶ 6, 7.) The Policy prohibits, among other harassing acts, "[v]erbal harassment. . ., derogatoiy comments . .., [and] demeaning or sexually explicit jokes . ..." (Carr Deck, Ex. 1, at 5.) "[Statements are sexual harassment when, inter alia, they have the purpose or effect of interfering with the employee's work performance or creating an intimidating, hostile or offensive working environment." (Id.) Employees are instructed to report in the following way:

[C]ontact your supervisor immediately if [y]ou feel you have been the victim of harassment. If you are uncomfortable speaking to your supervisor, please feel free to bring your concerns to the General Manager. Confidential investigations will be conducted promptly. Appropriate corrective actions will be taken upon completion of our investigation. Employees found to be harassing other employees will be immediately and appropriately disciplined, up to and including immediate discharge.

(Id. at 6.)

         Seehawer testified that his coworkers began harassing him after an August 2013 incident arising from Seehawer's failure to properly secure a vacuum tube onto a vacuum truck with which the water crew was working (the "Vacuum Incident"). (Seehawer Dep., 102:19-103:16; 108:2-17.) Huber was the driver on the job that day, and as he drove away, the tube came off the truck and shattered. (Seehawer Dep., 103:5-10.) Allegedly, immediately following the incident, Huber was angry, and cussing, "got up in [Seehawer's] face" and called him a "dumb ass." (Id.; see also Carr Decl, Ex. 5, Seehawer's Februaiy 12, 2015 letter to management (the "Letter") ("[Huber] approached me and yelled at me . . . and called me a 'f[]ing moron!'").) After an investigation, MWL found both Huber and Seehawer were partially responsible for the Incident. (Carr Decl., ¶ 12.)

         According to Seehawer, the Vacuum Incident served as the catalyst for what became a "daily barrage of sexually charged harassment" that questioned his sexual preference for "not living up to the masculine stereotype." (PL's Resp. ("Resp."), ECF No. 37, 2-3.) In November 2013, as Seehawer stood in a trench working on a pipe fitting, Huber, operating a backhoe, backfilled the trench with rocks which fell on Seehawer he bent over the pipe (the "Rock Incident"). (Seehawer Dep., 180:8-14.) Seehawer and MWL disagree as to whether or not Huber acted intentionally. Seehawer stated that at the time, Huber was "looking right at [him]," (id.); Huber and Knutz testified that Huber did not see Seehawer, as he was out of view. (Huber Dep., ECF No. 38-3, 23:20-22; Knutz Dep. 33:4-21; Carr Decl., ¶ 13.)

         Seehawer testified that Huber and McGanty would consistently taunt, demean, and attack him using inappropriate, demeaning names. (Seehawer Dep., 169:7-14.) Huber would step in front of Seehawer to block him at work and just smile and laugh, or refuse to bring necessary tools for Seehawer when Seehawer was working in a trench. (Letter, 4-5.) Huber and McGanty would say, "Oh look who decided to show up" and "my day is ruined," when Seehawer came into view. Id. Seehawer asserts that Knutz would also join them at times. (Letter, at 4 ("[Knutz] would just laugh about it and agree with them.").) Seehawer believes that the names Huber and McGanty called him were sexual or violent in nature, including "cornhole," which Seehawer understood to mean homosexual. (Id. at 169:9-11, 170:17-171:3.) Vulgar language, including use of the term "cornhole," was commonly used in the workplace. (Dep. of Mark Knutz ("Knutz Dep."), 20:15-24, 22:1-6 (stating that the term was thrown around frequently at work "towards somebody doing a stupid act" since around 2012).) Seehawer also states he felt physically threatened by Huber, including an instance when Huber allegedly told Seehawer "I can f[]ing kill you right now," a threat Huber denies making. (Seehawer Dep., 173:12 - 175:5; Huber Dep., 20:24 - 21:1, 25:3-7.)

         Seehawer claims he reported the harassment, primarily to Knutz. (Seehawer Dep., 185:8-19.) Seehawer made his first report immediately following the Vacuum Incident, though he does not remember to whom he reported it. (Seehawer Dep., 103:17-25; 104:7-13.) Second, he reported to Knutz that Huber allegedly threatened his life. (Seehawer Dep., 175:14-23.) After talking with Huber, according to Seehawer, Knutz determined that Huber had been "joking," and Huber was "never disciplined." (Seehawer Dep., 176:6-18; Resp., at 7.) Third, Seehawer reported Huber's conduct to Knutz after the Rock Incident. (Seehawer Dep. 180:3-16.) Knutz determined that Huber had not seen Seehawer when he began to drop rock into the trench, and therefore took no disciplinary action against Huber. (Huber Dep., 8:12-14.) Seehawer also claims to have made "complaints about coworkers" to Knutz, Klein, and Olson, but does not specify when or how he made those other reports, or what exactly he reported. (Seehawer Dep., 78:5-8.)

         MWL contends that although Seehawer complained of mistreatment, and characterized the treatment as "harassment" in the Letter, he never reported that the harassment was sexual in nature. (Carr Deck, ¶¶ 14, 15, 17.) According to MWL, Seehawer did not complain of sexual harassment during regular performance meetings or on any other occasion with Knutz, Klein, Olson, or Carr, but rather reported only that coworkers "treat[ed] him unfairly and us[ed] profane, demeaning names towards him." (Id.) MWL general services manger, Patrick Quin, characterized the conduct between the workers as "childish," like a "wounded chicken" being "picked to death" by a hen. (Dep. of PatrickQuinn, ECF.No. 38-8, 43:14-19, 45:10-22, 47:3-11, 81:18-21.) Seehawer first "ma[de] a complaint about his coworkers" around the time he began his performance improvement plan. (Carr Dep., 31:21-32:3.) Carr "received information" that Seehawer had complained of sexual harassment, but exactly when in time he received that information is unclear. (Id. at 30:3-8.)

         Seehawer frequently missed, and was tardy to, work. (Seehawer Dep., 111:1-17, 112:1-14, Decl. of Joshua Stump ("Stump Decl."), ECF No. 30, Ex. 1.) As detailed in his regular performance evaluations, Klein had warned Seehawer of his poor productivity and noted Seehawer was not willing to perform certain aspects of the job "in hard, dirty work situations." (Stump Deck; Ex. 4 at 6-10.) MWL became dissatisfied with Seehawer's job performance. (Seehawer Dep., 116:8-14; Stump Deck, Ex. 4 at 6-10.) Due to his frequent absences and increasingly poor performance, Seehawer received a written warning in December 2013, and in July 2014 Seehawer received an unfavorable performance appraisal. (Stump Decl, Ex. 4 at 6-10.) In August, he was placed on a "performance improvement plan" ("PIP") and required to attend weekly meetings with Klein or Olson to "check in" about his job performance. (Id. at 11-13, 18.)

         Despite a satisfactory performance review on October 1, 2014, later that month, Seehawer began to appear inattentive and "out of it," and he was involved in two avoidable workplace damage incidents. (Id. at 18-19.) In December 2014, Seehawer again received a written warning due to poor performance for the period from October to December. (Id., at 14-15.) The warning noted that Seehawer was not meeting "some of the expectations" of the PIP, and his performance needed improvement. (Id.) Consequently, weekly performance evaluations resumed. Seehawer was warned that if he failed "to maintain an acceptable level of performance and consistently meet the expectations and performance benchmarks as outlined in the PIP, pay adjustments or other disciplinary action, up to and including termination" could result. (Id.)

         Seehawer starting taking more time off from work in November 2014, and took FMLA-designated leave for two periods in December 2014. (Carr Dep., Exs. 10, 26, 33.) Seehawer again took FMLA leave in February 2015, following an emergency room visit for an attempted suicide allegedly due to stress from harassment at work. (Seehawer Dep., 218:3-2:20:14; Carr Dep., Exs. 12, 26, 33. A MWL memo states Seehawer produced two releases clearing him to return to work "full duty" on Feb. 9, 2015, one from his psychologist, Gregory Cole ("Dr. Cole"), and one from Dr. Eriksen, M.D. (Carr Dep., Ex. 12.) Dr. Cole excused Seehawer from work "for stress related reasons" from February 2-11, 2015, stating Seehawer was "cleared to return to full duty on 2/11 /15, as long as he continues to implement treatment suggestions made to him." (Carr Dep., Ex. 33.)[3]

         Seehawer began a several-weeks-long outpatient treatment program around February 19, 2015. (Seehawer Dep., at 220:23-222:2; Carr Dep., Ex. 11.) On March 20, 2015, Seehawer submitted to MWL a doctor's note stating that Seehawer could be released back to work on March 30, 2015, to "full duty, with no restrictions." (Carr Dep., Ex. 11, at B-86, see also Ex. 33 at B-101 (dated 3/23/15, stating same return date).)

         On February 12, 2015, while out on FMLA leave, Seehawer wrote the Letter to MWL management outlining the "ongoing harassment" he suffered at the hands of Huber and McGanty, including "name calling and slandering and talking behind [his] back." (Letter, at 3, 6.) Huber and McGanty "started calling [Seehawer] 'corn hole.' They would say it at jobs, [in the] lunchroom, [in the] warehouse, everywhere.... Here's a list of what they would say[:] corn hole, fucking corn hole, here comes the com hole, com hole alert, now there's a corn hole." (Letter, at 3.) In the Letter, Seehawer claims to have told Knutz, Klein, and Olson "about the issues many times." (Id. at 5.) Seehawer also states that Dr. Cole had "come up with a plan of action to make [him] better," suggesting either that Seehawer be transferred or "placed with" coworkers other than Huber or McGanty.[4] (Id. at 6.) Seehawer also alleges that he told Klein about Dr. Cole's plan, and Klein said "he would talk with . . . [Carr]" about it. (Id. at 7.) According to the Letter, though, Klein "came back" and told Seehawer he could not "accommodate" the suggested options or "change things" around "because of [Seehawer's] issues with" Huber and McGanty. (Id.)

         Seehawer was still on FMLA leave when MWL received the Letter. (Carr Dep., 46:16-17.) Can4 spoke with Klein to see if he had received any previous reports "of this type of harassment" by Seehawer. (Carr Dep., 44:21-24, 46:7-12.) Klein and Olson reviewed and investigated the incidents documented in the Letter; some were substantiated and others were not. (Carr Dep., Ex. 26 at B-95.) The incidents MWL confirmed it addressed with employees, and expectations were discussed. (Id.) Management held individual meetings with Knutz, Huber, and McGanty, as well as with the entire water crew as a group, to address the accusations in the Letter, and to "go[] over with the crew that [Carr] didn't want this language to continue." (Carr Dep., 37:19-23, 44:8-16, Ex. 26 at B-95.) Seehawer expressed that he did not want to take part in the meeting with the water crew because he was uncomfortable meeting with them. (Carr Dep., 48:25-49:15, 55:4-14; Seehawer Dep., 98:5-11.) Carr and Klein met with Seehawer separately from the rest of the crew. Seehawer says he told them "what was being said to [him]," such as "douche bag, rucking corn hole, corn hole, here comes the corn hole, look at the corn hole." (Seehawer Dep., 93:14-94:24, 97:17-98:22.)

         On April 2, 2015, Seehawer submitted another note from Dr. Cole, who wrote that he had seen Seehawer again "for stress related reasons concerning continuing harassment by coworkers." (Carr Dep., Ex. 33 at B-98.) In this note, Dr. Cole did not excuse Seehawer from work, specify whether Seehawer could work, or state whether he could work with identified restrictions. (Id.) After receiving this note, MWL sent Seehawer an FMLA status letter alerting him that he would soon exhaust his FMLA leave, and that MWL would require a release from Dr. Cole "to return to full duty work in [his] position." (Id. at Ex. 4.) On April 7, 2015, Dr. Cole indicated that Seehawer was "not currently approved for return to work... because of continuing problems managing stress from coworkers, and what [Seehawer] describes as a hostile work environment." (Id. at Ex. 33 at B-102.)

         MWL sent Seehawer a second FMLA status letter on April 16, 2015 stating, "if [Seehawer did] not return to work, [his]... FMLA leave [would] end[] at the end of the day April 23, 2015." (Id. at Ex. 5.) Additionally, it stated "there [we]re no open positions" at that time. (Id. at 51:13-52:12.) That is, there were no other positions available at MWL into which Seehawer could transfer, but his position on the water crew was "still filled by him." (Id.) Seehawer did not return to work, but on April 23, 2015, he appeared onsite to turn in his keys and remove his personal items. (Seehawer Dep., 232:18-233:3, 261:22-25; Carr Dep., Ex. 34.) Because MWL had not received a doctor's note releasing him to full duty, MWL interpreted these events as Seehawer's resignation. (Carr Dep., Ex. 6.) Seehawer did not see it as such; he claims he was merely "waiting to hear" if MWL would "offer [him] something else" or transfer him to a different position. (Seehawer Dep., 232:18-235:22.) Seehawer filed the instant suit in August 2016. (Compl., ECF No. 1.)

         Legal Standard

         Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. o/N. Am., 638 F.2d 136, 140 (9th Cir. 1981). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).

         The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary judgment by relying on the allegations in the complaint, or with unsupported conjecture or conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Thus, summary judgment should be entered against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

         The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). However, deference to the nonmoving party has limits. The nonmoving party must set forth "specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e). The "mere existence of a scintilla of evidence in support of the plaintiffs position [is] insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation omitted).

         Discussion

         L Title VII

         A. Hostile ...


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