United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
F. BECKERMAN UNITED STATES MAGISTRATE JUDGE
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. (ECF No. 1.)
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
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.)
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”),  a supervisor at Caruso Produce, about
Ellis' comments. (Lyzer Dep. 130:2:15.) Cheney assured
Lyzer that he would speak with Ellis. (Id.)
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.)
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.)
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.)
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.
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.)
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.)
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.
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.)
STANDARD OF REVIEW
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)
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.
alleges that Caruso Produce discriminated against him because
he has a disability and because he requested a reasonable
accommodation. (Compl. ¶ 67.)
establish a prima facie case of disability
discrimination under Oregon law,  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).
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. (Cox Decl. ¶ 3, Ex. 3 at
4-6) (describing the results of Lyzer's medical