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Lyzer v. Caruso Produce, Inc.

United States District Court, D. Oregon

September 9, 2019

MICHAEL LYZER, Plaintiff,
v.
CARUSO PRODUCE, INC., Defendant.

          FINDINGS AND RECOMMENDATION

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Michael Lyzer (“Lyzer”) brings this action against his former employer, Caruso Produce, Inc. (“Caruso Produce”). Lyzer alleges race discrimination and retaliation claims under Title VII and Or. Rev. Stat. § 659A.030, whistleblowing retaliation under Or. Rev. Stat. § 659A.199, and disability discrimination and retaliation under Or. Rev. Stat. §§ 659A.112 and 659A.109.[1] (ECF No. 1.)

         Caruso Produce moves for summary judgment on all of Lyzer's claims (ECF No. 48), and for sanctions under Federal Rule of Civil Procedure 37. (ECF No. 52.) The Court has jurisdiction over this case under 28 U.S.C. §§ 1331 and 1367. For the following reasons, the Court denies Caruso Produce's motion for Rule 37 sanctions, and recommends that the district judge grant Caruso Produce's motion for summary judgment.

         BACKGROUND [2]

         On June 22, 2014, Caruso Produce, a produce wholesale and delivery company, hired Lyzer as a driver. (Decl. of Samuel Caruso, Mar. 21, 2019 (“Caruso Decl.”) ¶¶ 2-3, ECF No. 49.) Lyzer's job responsibilities included transporting and unloading produce. (Id.)

         During his employment, Lyzer, a black man, believed that his co-workers treated him differently because of his race. (Lyzer Dep. 109:3-111:14, ECF No. 63, Ex. 2.) Once in 2015, Lyzer asked Andrew Ellis (“Ellis”), a co-worker, who he was speaking to on the phone. (Compl. ¶ 15.) Ellis replied: “[y]o momma, ” adding that he was not “talking about your daddy because blacks don't have daddies.” (Lyzer Dep. 127:3-20.) That same day, after a supervisor told Lyzer that there were no more deliveries for the day, Ellis mimicked Lyzer's voice to say: “[n]ow get out of here before I change my mind.” (Lyzer Dep. 125:3-15.) Following these interactions, Lyzer complained to Mike Cheney (“Cheney”), [3] a supervisor at Caruso Produce, about Ellis' comments. (Lyzer Dep. 130:2:15.) Cheney assured Lyzer that he would speak with Ellis. (Id.)

         On another occasion in January 2015, Lyzer called supervisor Garrett Kincaid (“Kincaid”) to let him know that he had successfully delivered grapes to a WinCo warehouse. (Lyzer Dep. 132:5-13.) Kincaid replied: “good boy.” (Id.) Around three months later, Cheney asked Lyzer how his sister, who had suffered a heart attack during surgery, was doing. (Compl. ¶ 19; Lyzer Dep. 134:6-17.) When Lyzer responded that his sister had been pronounced partially brain dead, Cheney exclaimed, “[o]h it runs in the family!” (Compl. ¶ 19; Lyzer Dep. 134:6-17.) Cheney later apologized for making this statement. (Lyzer Dep. 134:6-17.)

         On July 19, 2015, Lyzer inquired about any remaining deliveries by asking Ellis, “[h]ey bro what do you have left?” (Compl. ¶ 26; Answer ¶ 17.) Ellis responded: “[d]on't call me bro, boy.” (Compl. ¶ 26; Answer ¶ 17.) After Lyzer called and discussed the incident with Samuel Caruso (“Caruso”), the president of Caruso Produce, Ellis called Lyzer and apologized. (Compl. ¶ 26; Answer ¶ 17.) Around two months later, Lyzer called Kincaid to report a successful delivery. (Compl. ¶ 29; Lyzer Dep. 166:12-167:12; Decl. of John Burgess, May 15, 2019 (“Burgess Decl.”) ¶ 5, Ex. C at 28, ECF No. 64.) Kincaid again responded by saying “good boy.” (Compl. ¶ 29; Lyzer Dep. 166:12-167:12; Burgess Decl. ¶ 5, Ex. C at 28.)

         On December 2, 2015, Lyzer spoke to a co-worker about an idea Lyzer had to improve work productivity. (Lyzer Dep. 169:2-170:1.) Cheney heard about Lyzer's idea and said to Lyzer, “[h]ow about I take off my belt and whip your ass.” (Lyzer Dep. 169:2-170:1.) On January 20, 2016, Dave Webber (“Webber”), a supervisor, reprimanded Lyzer for forgetting a receipt from a delivery by stating, “[w]e're going to take you out back and beat you next time.” (Lyzer Dep. 172:13-173:14.)

         Three months later, Cheney approached Lyzer in a parking lot and asked, “[w]hat's going on with you, boy?” (Lyzer Dep. 176:9-19.) Lyzer replied, “[w]ho are you calling boy?” (Lyzer Dep. 176:9-19.) Cheney answered, “[y]ou, how come you don't talk to me anymore?” (Lyzer Dep. 176:9-19.) Lyzer responded, “[b]ecause whenever I do you, you always have something ignorant to say to me, ” adding that Cheney's walking up to Lyzer and calling him “boy” presented a “good example.” (Lyzer Dep. 176:9-19.)

         On March 7, 2017, Lyzer filed a complaint with the Bureau of Labor and Industries (“BOLI”). (Burgess Decl. ¶ 6, Ex. D.) Lyzer alleged in his BOLI complaint that Caruso Produce discriminated against him on the basis of race. (Burgess Decl. ¶ 6, Ex. D.) In response, Caruso Produce hired an independent investigator to look into Lyzer's BOLI allegations. (Burgess Decl. ¶ 5, Ex. C.) As a result of this investigation, Caruso reprimanded Cheney. (Caruso Dep. 22:3-23:6, ECF No. 64, Ex. 1.)

         Around April 20, 2017, Caruso found Lyzer in a company delivery truck parked on the side of the road, down the street from Caruso Produce's warehouse. (Burgess Decl. ¶ 7, Ex. E; Caruso Decl. ¶ 4.) Caruso approached the truck and asked Lyzer why he had pulled over. (Caruso Decl. ¶ 4.) Lyzer replied that he had pulled over because he had an urgent need to urinate. (Burgess Decl. ¶ 7, Ex. E; Lyzer Dep. 274:22-25.) Caruso stated that it is improper to urinate in a company truck, and Lyzer responded that he urinated into a container. (Lyzer Dep. 36:10-20.)

         When Lyzer eventually arrived at Caruso Produce's warehouse, Caruso asked Lyzer to meet with him and Webber to discuss Lyzer's urination. (Caruso Decl. ¶ 4; Lyzer Dep. 41:2-24.) During this meeting, Lyzer explained that he had been treated for prostate cancer, and had trouble holding his urine ever since. (Lyzer Dep. 41:2-24.) Lyzer also informed Caruso and Webber that this was not the first time he had used a container to urinate in a company truck. (Lyzer Dep. 44:17-45:2.)

         After the meeting, Caruso sent Lyzer a letter. (Decl. Michael Cox, Mar. 22, 2019 (“Cox Decl.”) ¶ 4, Ex. 13 at 7, ECF No. 51.) In the letter, Caruso stated that Lyzer's frequent need to urinate raised sanitary and safety issues, and asked Lyzer to present information from his doctor “as to how to best accommodate” his condition. (Id.) Caruso also offered to retrain Lyzer “in any other position” other than driving a truck, which Lyzer declined. (Burgess Decl. ¶ 7, Ex. E; Lyzer Dep. 178:23-181:13.) While awaiting information from Lyzer's doctor, Caruso kept Lyzer on the work schedule. (Cox Decl. ¶ 4, Ex. 13 at 23.) Although Lyzer underwent a medical evaluation and represented through his counsel that he would provide a doctor's note, Lyzer never provided Caruso Produce with the requested doctor's note. (Cox Decl. ¶ 4, Ex. 13 at 22.) Lyzer did not report for work again. (Cox Decl. ¶ 4, Ex. 13 at 23.)

         DISCUSSION

         I. STANDARD OF REVIEW

         Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). On a motion for summary judgment, courts must view the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of that party. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005) (citations omitted). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (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 omitted).

         II. ANALYSIS

         Caruso Produce seeks summary judgment on all of Lyzer's claims. (Def.'s Mot. at 8.) The Court addresses each of Lyzer's claims in turn.

         A. Disability Discrimination

         Lyzer alleges that Caruso Produce discriminated against him because he has a disability and because he requested a reasonable accommodation. (Compl. ¶ 67.)

         1. Actual Disability

         To establish a prima facie case of disability discrimination under Oregon law, [4] Lyzer must demonstrate that he: (1) has a disability; (2) is a qualified individual; and (3) suffered an adverse employment action because of his disability. Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012). The term “disability” is defined as a physical or mental impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(1)(A).

         Lyzer has not presented any evidence to demonstrate that he has a disability. In fact, at his deposition, Lyzer denied having a disability. (Lyzer Dep. 183:11.) The record also reflects that although Lyzer suffered from prostate cancer in 2012, he was cancer free by May 2017. (Cox Decl. ¶ 3, Ex. 3 at 4-6.) Although Lyzer asserts that he “suffered from incontinence at the time in question” (Pl.'s Opp'n at 18), the record includes no evidence that Lyzer suffered from incontinence.[5] (Cox Decl. ΒΆ 3, Ex. 3 at 4-6) (describing the results of Lyzer's medical ...


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