United States District Court, D. Oregon
YOHAN D. ROZAIRO, Plaintiff,
WELLS FARGO BANK NATIONAL ASSOCIATION, Defendant.
D. Rozairo, pro se.
P.R. Symes, Littler Mendelson, P.C., Of Attorneys for
OPINION AND ORDER
MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE
brings claims for violations of the Family Medical Leave Act
(“FMLA”), the Oregon Family Leave Act
(“OFLA”), disability discrimination under Oregon
law, and whistleblower retaliation against his former
employer, Defendant Wells Fargo Bank National Association
(“Wells Fargo”). Defendant moves for summary
judgment on all of Plaintiff's claims. ECF 33. Plaintiff
has filed a cross-motion for summary judgment on his FMLA,
OFLA, and whistleblower retaliation claims. ECF 37. For the
reasons that follow, Defendant's motion is granted.
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 non-moving 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).
parties file cross-motions for summary judgment, the court
“evaluate[s] each motion separately, giving the
non-moving party in each instance the benefit of all
reasonable inferences.” A.C.L.U. of Nev. v. City of
Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006)
(quotation marks and citation omitted); see also Pintos
v. Pac. Creditors Ass'n, 605 F.3d 665, 674 (9th Cir.
2010) (“Cross-motions for summary judgment are
evaluated separately under [the] same standard.”). In
evaluating the motions, “the court must consider each
party's evidence, regardless under which motion the
evidence is offered.” Las Vegas Sands, LLC v.
Nehme, 632 F.3d 526, 532 (9th Cir. 2011). “Where
the non-moving party bears the burden of proof at trial, the
moving party need only prove that there is an absence of
evidence to support the non-moving party's case.”
In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387
(9th Cir. 2010). Thereafter, the non-moving party bears the
burden of designating “specific facts demonstrating the
existence of genuine issues for trial.” Id.
“This burden is not a light one.” Id.
The Supreme Court has directed that in such a situation, the
non-moving party must do more than raise a
“metaphysical doubt” as to the material facts at
issue. Matsushita, 475 U.S. at 586.
worked for Defendant from 2010 until his termination on
January 11, 2016. Plaintiff was promoted several times during
his tenure at Wells Fargo, but during the years leading up to
his termination he was a Compliance Analyst for the Customer
Care and Recovery Group (“CCRG”). As a member of
the CCRG group, Plaintiff handled customer complaints about
home equity loans. Although Plaintiff worked in Beaverton,
Oregon, his supervisors were based in Phoenix, Arizona. Until
June of 2015, Plaintiff's manager was Leslie Murdock, but
after Murdock left her position, Christy Shane took over
managerial responsibilities until Defendant could find a
permanent replacement. In August 2015, Julie Tollefsen became
Plaintiff's supervisor, and she supervised him until his
termination in January 2016.
issues began with his divorce in mid-2014. In June 2014,
Plaintiff began seeing a licensed clinical social worker,
Elizabeth Downs, for emotional distress, depression, and
anxiety precipitated by his divorce. Downs diagnosed
Plaintiff with depression and recommended that Plaintiff
receive counseling for his depression. She did not prescribe
medication, nor did she refer Plaintiff to a psychiatrist or
physician for medical care. Plaintiff continued to see Downs
for counseling throughout 2014 and 2015. He saw her six times
between June 2014 and August 2014, but then did not see her
again until March 2015. Between March 2015 and early May
2015, he saw Downs six times. After that, Plaintiff saw Downs
on September 9, 2015 and September 12, 2015, and then again
on January 1, 2016 and January 8, 2016.
also took several periods of leave to deal with his
depression. From June 9, 2014 through June 29, 2014,
Plaintiff took his first period of short-term disability
leave. He also took four weeks of short-term disability leave
in March of 2015 and another two weeks of leave in late
August and early September of 2015. In each of those
instances, Plaintiff sought and obtained approval from
Defendant for his leave. In July of 2015, Defendant changed
its leave policy for employees. Employees were then required
to contact Defendant's claims and leave administrator,
Liberty Mutual (“Liberty”), and a failure to do
so “may result in corrective action, which may include
termination of your employment.” Def. Ex. E. Defendant
also imposed documentation requirements, requiring any
employee absent from work for more than seven consecutive
calendar days to provide documentation supporting his or her
need for a leave of absence. If an employee failed to provide
adequate documentation, he or she would be considered out of
compliance with Defendant's policies, the leave would be
designated as unapproved, and the employee could be subjected
to corrective action, including termination of employment.
revised policies went into effect in July 2015. Plaintiff
took leave under the new policies beginning in late August
2015. A few days after commencing his leave, in early
September 2015 Plaintiff contacted Liberty to request
approval. On December 2, 2015, Plaintiff again took leave,
this time to care for his sick child. Plaintiff texted
Tollefsen that he would be absent and that he had called
Liberty. On December 17 and 18, 2015, Plaintiff was again
absent because of his sick child, and he testified that he
called Liberty in connection with those absences as well.
Def. Ex. A. at 131. Each time before December 21, 2015 that
Plaintiff took leave, he complied with Defendant's leave
policy and contacted Liberty. Def. Ex. M at 177-78.
addition to his approved leave, Plaintiff also had several
unexcused absences from work. On June 25, 2015, Plaintiff
received an informal warning for his attendance due to
absences on December 26, 2014, April 30, 2015, June 5, 2015,
June 12, 2015, and June 23, 2015. Def. Ex. G. On October 29,
2015, Plaintiff was given a formal warning for his
attendance. Def. Ex. H. In addition to the absences that gave
rise to the informal warning, the formal warning cited him
for absences on June 24, 2015, July 23, 2015, August 19,
2015, August 25, 2015, and October 21, 2015. Plaintiff
responded to the formal warning and argued that on October 21
he had been absent to care for his sick child, and that he
had informed his manager of this. Plaintiff had texted
Tollefsen on October 21 that his child was ill and he would
be absent, and she responded by asking him if he had called
Liberty to ensure his absence was covered. Def. Ex. J.
Plaintiff disputed the October 21 absence as a basis for his
formal warning because his child was ill that day. In
response Rose Anderson, the Executive Resolution Manager in
the CCRG group told Plaintiff to call Liberty to discuss
whether his absence would be protected under OFLA. Def. Ex.
was absent from work between December 17, 2015 and January
11, 2016. Plaintiff's absences on December 17 and 18 were
to care for his sick child. Beginning on December 21, 2015,
Plaintiff found himself severely depressed and took leave due
to his depression. On December 21, Plaintiff texted
Tollefsen, stating: “Hello, I need to apply for short
term disability. I hope you approve the remaining week off
for me. Thank you.” Tollefsen responded, “If
you've notified Liberty, and I already have confirmation
that you did, then you are covered pending their decision.
Any thoughts about how long you may be out? Are you
ok?” Def. Ex. I. On December 24, 2015, Plaintiff
responded, “My doctor thinks a few weeks. I will keep
you in touch.” Id. Plaintiff had not seen
Downs, his only healthcare provider during this period, since
September 2015 and had not spoken to her regarding a need for
medical leave. Def. Ex. C at 60.
January 7, 2016, Tollefsen called Liberty to find out whether
Plaintiff had filed an application for protected leave.
Liberty informed her that Plaintiff had no pending
application and had not filed a request for leave. Tollefsen
testified that on January 7, 2016, she tried to reach
Plaintiff by phone and left a voicemail. She tried to reach
Plaintiff again by telephone the following day, on January 8.
On January 8, Plaintiff also texted Tollefsen, “Hello,
my doctor said it would be OK to get back to work from
Monday. I will ask the paperwork to be sent by Liberty
mutual.” Tollefsen responded, ...