United States District Court, D. Oregon
Jessica Ashlee Albies and Whitney B. Stark, Albies &
Stark, llc, Of Attorneys for Plaintiff.
M. Barrett and Christopher A. Morehead, Ogletree, Deakins,
Nash, Smoak & Stewart, pc, Of Attorneys for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON, DISTRICT JUDGE.
Linggi (“Linggi”) brings this lawsuit against his
former employer TE Connectivity (“TEC”), alleging
that TEC retaliated against him by terminating his employment
for opposing and reporting what he believed to be legal
wrongdoing during a U.S. Food and Drug Administration
(“FDA”) inspection at his workplace. Plaintiff
asserts state law claims under Or. Rev. Stat. §§
659A.030 and 659A.199 and for common law wrongful discharge.
TEC moves for summary judgment or, alternatively, for partial
summary judgment. For the reasons that follow, TEC's
motion is granted in part and denied in part.
is entitled to summary judgment if the “movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party has the burden of
establishing the absence of a genuine dispute of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The court must view the evidence in the light most
favorable to the non-movant and draw all reasonable
inferences in the non-movant's favor. Clicks
Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257
(9th Cir. 2001). Although “[c]redibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge . . . ruling on a motion for summary
judgment, ” the “mere existence of a scintilla of
evidence in support of the plaintiff's position [is]
insufficient.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252, 255 (1986). “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. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
and quotation marks omitted).
TEC and Its Personnel
is a former employee of TEC, a company that designs and
manufactures connectors and sensors for products used in a
variety of industries, including the medical industry. TEC
operates several facilities, including a facility in
Wilsonville, Oregon that manufactures cables and subparts
used in medical devices regulated by the FDA. Plaintiff
worked for TEC in Wilsonville, Oregon from April 2012 through
April 2015 and again from November 2015 through March 2017.
On March 17, 2017, TEC terminated Plaintiff's employment.
Plaintiff's first period of employment at TEC (from April
2012 through April 2015), he worked as a manufacturing
engineer. When he returned to TEC in November 2015,
Plaintiff's position was Manager of Quality Systems. In
that role, Plaintiff supervised TEC's quality management
compliance at three facilities: Wilsonville, Oregon; Guyamas,
Mexico; and Suzhou, China. Before working for TEC, Plaintiff
had no previous experience in quality control.
Plaintiff was rehired by TEC in November 2015, his supervisor
was David Vose. Shortly thereafter, Vose left TEC. Plaintiff
was next supervised remotely by Jeff Sears, who was
responsible for Global Operations and Quality Assurance and
Regulatory Affairs. Sears left TEC in June 2016. After Sears
left, Plaintiff was directly supervised by Mark Andrews, the
Senior Operations Manager in Wilsonville. Plaintiff also had
a “dotted line” reporting relationship to Joan
McCabe, TEC's Senior Vice President of Quality and
joined TEC in April 2016, when TEC acquired Creganna Medical,
where she had been in charge of its Quality Department.
McCabe was located in Galway, Ireland, but she and Plaintiff
communicated by telephone on a semi-weekly basis. Andrews
(Plaintiff's on-site supervisor) did not work in
TEC's Quality Department.
TEC's Planned Reduction in Force
April 2016, TEC acquired Creganna Medical, which had its own
quality and operations departments. After the acquisition,
TEC reorganized into two subdivisions: (1) Surgical and
Cables; and (2) Interventional. Vish Ananthan was appointed
to lead the Surgical and Cables Division. TEC determined that
it needed to “right size” or restructure the
Surgical and Cables Division through a reduction in force
(“RIF”). The goals of the RIF included reducing
the number of TEC employees at the Wilsonville facility by 24
employees and reducing the number of TEC employees worldwide
by 82 employees.
Beistline, TEC's Senior Manager of Human Resources, and
Vish Ananthan were jointly in charge of the RIF, although the
names on the final RIF list were subject to final approval by
TEC's corporate and legal departments. TEC scheduled
layoffs associated with the RIF to take place in waves
beginning in October 2016. On July 14, 2016, Beistline met
with all department leaders to review employees that each
leader had identified as potential candidates for the RIF. At
this meeting, Mark Andrews identified Plaintiff as a
potential candidate for the RIF. Andrews stated that he
included Plaintiff on the RIF list because Plaintiff was one
of the highest paid employees, yet Plaintiff's role was
in flux and his duties had shrunk in scope as the nature of
the organization was changing. When Plaintiff had been
rehired into the Quality Department in November 2015, he
supervised five employees, but by July 2016 that number had
been reduced to three. Although performance was not a factor
in Plaintiff's inclusion on the RIF list, the fact that
that Plaintiff was relatively inexperienced and new to the
role contributed to Andrews' decision to place Plaintiff
on the RIF list. At the July 14 meeting, the department
leaders also discussed whether Plaintiff should be moved to
another position within the company, but ultimately decided
to place Plaintiff's name on the RIF list.
17, 2016, Beistline sent an email to Conrad Johnson at TEC,
attaching a list of the names that the department leaders had
suggested for the RIF. Plaintiff's name was included on
that list. On September 13, 2017, Beistline sent another
email, this time to Robert Rizzitello at TEC with a copy to
Anthanan. This email included an updated RIF list, which also
continued to contain Plaintiff's name. On September 22,
2016, Beistline emailed the latest RIF list to Lauren Breen,
a labor and employment attorney at TEC, and Plaintiff's
name remained on that list. On September 27, 2016, a revised
RIF list was sent to TEC's corporate group for approval.
That list continued to include Plaintiff's name.
changes to the RIF list needed to be approved by Anthanan as
well as by the finance and human resources departments.
Throughout the months during which the RIF list was being
modified, Plaintiff's inclusion on that list did not
change. Although the RIF list was an evolving document and
names would be removed if a listed employee retired or
resigned, the consistent goal of the RIF list was to reduce
the total number of employees, not to eliminate any specific
employee. As a result, some employees whose names were
initially on the RIF list were not ultimately terminated.
October 7, 2016, Andrews met with Plaintiff to speak with him
about the possibility of Plaintiff transferring to a position
in TEC's engineering department, which was supervised by
Bill Veith. Although the planned RIF was not yet generally
known within TEC and Andrews could not tell Plaintiff that
his name was on the RIF list, Andrews hoped to encourage
Plaintiff to move to a new position within the company so
that he would not be terminated. Vieth needed a project
manager in the engineering department, and Andrews knew that
Plaintiff's position was in danger. Andrews thought that
with Plaintiff's background and work experience in
engineering, this position might be a good fit for him.
Andrews decided to approach Plaintiff with this idea, even
though the engineering position was not a management-level
position and was classified at a lower grade than
Plaintiff's job in the Quality Department.
that meeting, Andrews gave Plaintiff “mixed performance
feedback, ” stating both negative and positive things
about Plaintiff. Andrews suggested that Plaintiff meet with
Bill Veith, the engineering department manager. Andrews also
alluded to a potential restructuring within TEC. Plaintiff
left the meeting confused and concerned about his job
October 9, 2016, Plaintiff sent an email to Brenda Gilman, a
human resources representative, stating that Andrews had told
him that his position was going to be affected by an upcoming
restructuring and asking what he should do. Gilman forwarded
Plaintiff's email to Andrews, who responded to Plaintiff,
telling him that his conclusions about his position being
affected by a restructuring were “incorrect and
believed that moving to the engineering position would be a
demotion, even though his salary would remain unchanged. On
October 24, 2016, Gilman reached out to Andrews and inquired
whether Plaintiff had discussed the engineering position with
Veith. Andrews responded that Plaintiff needed to be on the
RIF list, and it was up to Veith to make Plaintiff a job
offer in the engineering department before Plaintiff was
scheduled to be let go. In late October, Plaintiff met with
Vieth and declined the position in the engineering
RIF happened in several waves, or stages. Each employee whose
name was on the list was assigned a date on which he or she
would be notified of termination. TEC originally scheduled
Plaintiff's termination for November 11, 2016. On
November 10, Ananthan emailed Beistline and told her that he
had heard “from the grapevine” that Plaintiff was
planning to resign from his position at TEC. Anthanan asked
Beistline to postpone Plaintiff's termination date, and
Beistline moved Plaintiff's termination date from
November 2016 to early 2017. TEC then scheduled Plaintiff to
be notified of his upcoming termination on January 20, 2017,
with an effective termination date of February 3, 2017.
December 5, 2016, however, Plaintiff suffered a seizure at
work and was taken to the hospital by ambulance. Plaintiff
took concurrent short-term disability leave and leave under
the Family and Medical Leave Act (“FMLA”) and the
Oregon Family Leave Act (“OFLA”) through January
4, 2017. Plaintiff later extended his approved short-term
disability leave through March 24, 2017. (Plaintiff's
FMLA and OFLA benefits expired on February 27, 2017.) TEC
further delayed Plaintiff's scheduled RIF date due to his
FDA Inspection in September 2016
an FDA registered contract manufacturer of medical device
components. On September 8, 2016, McCabe learned that there
would be an FDA inspection at TEC's Wilsonville facility.
McCabe flew to Wilsonville to prepare for that inspection.
Preparations for the FDA inspection began on September 10,
2016, and the inspection began on September 13, 2016.
Plaintiff and Kevin Ankrum, among others, assisted McCabe in
preparing for the FDA inspection.
September 10, 2016, three days before the inspection began,
Plaintiff was working at the Wilsonville facility with Ankrum
and McCabe. Plaintiff and McCabe reviewed an internal audit
and Corrective Action Preventative Action
(“CAPA”) that Plaintiff, Ankrum, and Troy
Brewster, another TEC employee, had prepared. McCabe asked to
see previous versions of the global internal audit schedule,
but Plaintiff reported that they were not in the records.
McCabe reviewed the existing global internal audit schedule
and began to make handwritten changes to the document. McCabe
also instructed Plaintiff to make these changes and then
reprint the front page of the document.
response to McCabe's request, Plaintiff showed
“immediate discomfort.” Plaintiff believed that
McCabe was requesting falsification and backdating of a
record and further believed that the changes to the document
should have reflected the current date, not the date that
Plaintiff had originally completed and signed the record.
Plaintiff told McCabe something to the effect of “this
doesn't feel right.” McCabe replied, “Well,
Chris, you're the only approval required so they
shouldn't be hard to find.” McCabe then
“winked” and “smiled” at Plaintiff.
Plaintiff concluded that McCabe's wink indicated that she
knew that he was opposed to her request. Ultimately,
Plaintiff did not revise, reprint, or sign the document as
requested. On September 13, 2016, when the FDA inspector
asked to review the global audit schedule, Plaintiff
presented the original schedule to the inspector. McCabe was
present when Plaintiff did this and, thus, presumably knew
that he had not complied with her request.
September 10, 2016, McCabe and Plaintiff were reviewing each
individual open CAPA, and McCabe identified a CAPA initiated
by an overdue preventative maintenance for equipment relating
to environmental control systems for the facility. McCabe
instructed Plaintiff that “an assessment was needed to
state [that] an initial review determined there was no impact
to systems in control of product quality.” That same
day, McCabe reviewed TEC's quality manual and complaints
procedure. During her review, McCabe identified obsolete
references to medical device reporting. Plaintiff explained
that he had removed some of the references from the quality
manual because he had been instructed to do so by Sears, his
previous supervisor. Plaintiff also explained that the
remaining references were in the document because Sears had
instructed him to update the quality agreements with
customers before revising the procedures.
further preparation for the inspection, on September 10,
2016, McCabe reviewed an internal audit report that Plaintiff
had completed under the supervision of Sears. Plaintiff had
initiated the internal audit because he recognized that TEC
had deficiencies in the area of training, although Plaintiff
believed that he could not have been responsible for the
failures identified in the training audit because he had not
been working at TEC during the time period during in which
the failures had developed. After reviewing the training
audit report, McCabe sent an email to Plaintiff and Ankrum in
which she described the training audit report as
“scathing” and expressed her displeasure with the
September 10, 2016, at 8:20 p.m., McCabe sent an email to
Andrews, expressing her disappointment with Plaintiff's
work. In her email, McCabe wrote, “[a]fter a day of
diving into the QMS [Quality Management Systems] aspects it
is extremely clear that Chris L[inggi] is in his job and way
over his head. He is very committed but has no clue how
to protect us and in fact [I] feel is more a risk than a
[sic] asset. . . . Anyway - just want to give you a
heads up. We'll get through the next week but [I] think
we need to make changes later.” ECF 41-1 at 54
(emphasis added); ECF 30-2 at 22 (same document). Andrews
responded the following day, saying “I'm leaning
toward similar thoughts.” Id.
September 10, 2016, after Plaintiff finished preparations for
the audit for the day, Plaintiff reached out to his former
supervisor, Jeff Sears, who no longer worked for TEC.
Plaintiff had serious concerns about McCabe's conduct
that day and believed that her actions amounted to violations
of federal or state law, FDA regulations, or TEC policies.
Plaintiff contacted Sears and described to him McCabe's
instruction to modify the internal audit report. Sears agreed
that this action sounded unlawful. Sears advised Plaintiff to
take notes regarding his concerns, escalate his concerns, and
ask simple ...