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Rozairo v. Wells Fargo Bank National Association

United States District Court, D. Oregon

July 17, 2019

YOHAN D. ROZAIRO, Plaintiff,

          Yohan D. Rozairo, pro se.

          David P.R. Symes, Littler Mendelson, P.C., Of Attorneys for Defendant.



         Plaintiff 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.


         A party 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).

         When 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.


         Plaintiff 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.

         Plaintiff's 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.

         Plaintiff 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. Id.

         The 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.

         In 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. H.[1]

         Plaintiff 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.

         On 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, ...

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