Anderson v. Hibu, Inc.

26 F.Supp.3d 1019

Paula J. ANDERSON, Plaintiff

v.HIBU, INC., a Delaware Corporation, fka Yellowbook Inc., Defendant.

Civ. No. 6:13–cv–00840–MC.

United States District Court, D. Oregon.

Signed June 12, 2014.

John D. Burgess, Larry L. Linder, Law Office of Larry L. Linder, Salem, OR, for Plaintiff.

Sarah E. Ames, Carol A. Noonan, Davis Wright Tremaine, LLP, Portland, OR, for Defendant.

OPINION AND ORDER

McSHANE, District Judge:

Between June 2010 and March 2011, plaintiff Paula Anderson worked as a media consultant for Hibu Inc. (formerly Yellowbook Inc.). In September 2010, plaintiff injured her wrist during a sales call. With defendant's assistance, plaintiff filed a workers' compensation claim which was subsequently accepted. Because plaintiff's wrist did not improve, she underwent surgery on January 18, 2011. Following her surgery, plaintiff was placed on leave of absence. After exhausting the leave period, plaintiff was terminated in accordance with company policy on March 1, 2011. Pursuant to termination, plaintiff received a telephone call and letter inviting her to seek reemployment on a competitive basis. Plaintiff was released to full duty in June 2011, but did not seek reinstatement with defendant.

This Court is asked to consider: (1) whether defendant retaliated against plaintiff under ORS § 659A.040(1) because plaintiff invoked the workers' compensation system and (2) whether plaintiff's right to reinstatement under ORS § 659A.043 was violated because defendant made it known to her that reinstatement would not be considered and that an actual demand would therefore be futile. Because (1) plaintiff's allegations of adverse employment action do not meet her burden under McDonnell Douglas and (2) plaintiff's termination correspondence excused her from making a demand for reinstatement under ORS § 659A.043, this Court finds that defendant did not violate ORS § 659A.040(1), but did violate ORS § 659A.043. Thus, plaintiff's motion for partial summary judgment, ECF No. 12, is GRANTED IN PART and DENIED IN PART, and defendant's motion for summary judgment, ECF No. 16, is GRANTED IN PART and DENIED IN PART.

PROCEDURAL AND FACTUAL BACKGROUND

This action arises out of alleged retaliatory action and violation of plaintiff's reinstatement rights. Plaintiff began working for defendant as a media consultant in June 2010. Pl.'s Decl. of Counsel 1, 25, ECF No. 13–1. On September 28, 2010, plaintiff tripped and injured her wrist while making a sales call. Decl. of Paula J. Anderson 2, ECF No. 14. Plaintiff reported her injury to her supervisor, Nathan Laprier, that same day. Decl. of Sarah E. Ames 7–8, ECF No. 19–1. Laprier assisted plaintiff in filing her workers' compensation claim. Id. at 8. Defendant's workers' compensation claim administrator, Gallagher Basset, sent plaintiff an “INITIAL NOTICE OF CLAIM ACCEPTANCE” dated November 4, 2010, for a “Non–Disabling Left wrist sprain.” Id. at 41, 62–65. This initial notice included a “Notice to Worker” packet, which notified plaintiff of her “Employment reinstatement rights and responsibilities.”¹ Id. at 63.

Plaintiff continued to perform her job duties after the September injury. Pl.'s Decl. of Counsel 27, ECF No. 13–1. However, when plaintiff's wrist injury did not improve over time, she scheduled surgery for January 18, 2011. Decl. of Paula J. Anderson 2, ECF No. 14. Plaintiff notified defendant's Leave of Absence Coordinator, Julie Cunningham, of the scheduled surgery via email on December 17, 2010. Id.; Pl.'s Decl. of Counsel 35, ECF No. 13–1. On January 18, 2011, plaintiff was taken off work by her physician and underwent wrist surgery. Pl.'s Decl. of Counsel 26, ECF No. 13–1. After surgery, plaintiff was placed on leave of absence and provided with an informational letter (Notice of Eligibility and Rights & Responsibilities) regarding defendant's leave of absence policies. Decl. of Paula J. Anderson 2, ECF No. 14; see also Pl.'s Decl. of Counsel 14, ECF No. 13–1.

Pursuant to defendant's leave of absence policy, an employee not eligible under the Family and Medical Leave Act (FMLA) was entitled to a leave period dependent upon his or her tenure. Decl. of Sarah E. Ames 5, ECF No. 19–2. If an employee exhausted this leave period without a physician release to return to work, that employee was terminated. Id. at 2. Plaintiff, in her informational letter, was informed that her non-FMLA leave period expired on January 31, 2011. Pl.'s Decl. of Counsel 14, ECF No. 13–1. Plaintiff's leave period was subsequently extended to February 28, 2011. See id. at 22.

During plaintiff's leave period, defendant's Claims Representative, Dana Schultz, sent plaintiff a “MODIFIED NOTICE OF CLAIM ACCEPTANCE” dated February 1, 2011. This modified notice reclassified plaintiff's wrist injury as “a disabling: Left wrist sprain and TFCC tear.” Decl. of Sarah E. Ames 66, ECF No. 19–1. Plaintiff's modified notice of claim acceptance included the same “Notice to Worker” packet provided in her initial notice of claim acceptance. Id.; see also supra note 1.

On March 1, 2011, Cunningham, via telephone, terminated plaintiff because she had exhausted her leave period. Pl.'s Decl. of Counsel 16, ECF No. 13–1. Cunningham also sent plaintiff a written termination notice, dated March 1, 2011. Id. at 22. That termination notice provided, in relevant part:

As we discussed previously, because you are unable to return to work and the 6 week leave granted to you expired on February 28, 2011, your employment with Yellowbook has ended on March 1, 2011. If you are participating in our health or dental insurance plan, this coverage has also been terminated as of March 1, 2011. [Consolidated Omnibus Budget Reconciliation Act] information will be mailed to you shortly. Any additional payments due will be paid out in the form of a live check mailed directly to your address above.

Please return any Yellowbook materials (name badge, security card, keys, FOB, Tablet) to your manager immediately.

If you are interested in re-employment once your doctor has released you to work, you may contact Tina Siebal at ... or submit an application/resume....

You will be considered, along with other external applicants, for any open positions that you are qualified for at the time of your application. In order to be considered for rehire, you must be in good standing with Yellowbook....

Pl.'s Decl. of Counsel 22, ECF No. 13–1. This written termination notice was consistent with Cunningham's telephone conversation with plaintiff. See id. at 50 (“I don't remember communicating with her regarding reinstating if she separated.”); Decl. of Paula J. Anderson 2, ECF No. 14 (indicating that Cunningham informed plaintiff that plaintiff would be considered along with other external applicants if she applied for employment).

In a letter dated March 2, 2014, Angie Corcoran, defendant's Director of Benefits & Human Resources Systems, reminded plaintiff of her confidentiality obligations.² See Pl.'s Decl. of Counsel 19, ECF No. 13–1. Plaintiff's client accounts were then reassigned to other employees. Id. at 18.

On or about June 14, 2011, plaintiff became medically stationary and was released to full duty. See Pl.'s Decl. of Counsel 4, ECF No. 13–1; but see Pl.'s Decl. of Counsel 26, ECF No. 13–1 (indicating that plaintiff was released to work on June 6, 2011). Plaintiff did not request reinstatement.

On July 21, 2011, Schultz sent plaintiff two documents, an “Updated Notice of Claim Acceptance at Closure,” Decl. of Sarah E. Ames 59–61, ECF No. 19–1, and a “Notice of Closure,” Pl.'s Decl. of Counsel 4–6, ECF No. 13–1. The first document, like plaintiff's two previous notices of claim acceptance, included a “Notice to Worker” packet. See Decl. of Sarah E. Ames 59–61, ECF No. 19–1; see also supra note 1.

STANDARD OF REVIEW

This Court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue is “genuine” if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A fact is “material” if it could affect the outcome of the case. Id. The court reviews evidence and draws inferences in the light most favorable to the non-moving party. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir.2006) (quoting Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) ). When the moving party has met its burden, the nonmoving party must present “specific facts showing that there is a genuine issue for trial. ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e) ) (emphasis in original).

DISCUSSION

Plaintiff, in her complaint, contends that: (1) defendant retaliated against her under ORS § 659A.040 because she filed for workers' compensation and (2) defendant violated her right to reinstatement under ORS § 659A.043 by making it known that her reinstatement would not be considered and that an actual demand would therefore be futile. Pl.'s Compl. 7–8, ECF No. 1–1. Plaintiff and defendant move for summary judgment as to both claims.

I. ORS § 659A.040 (Workers' Compensation Retaliation)

Under ORS § 659A.040(1), “[i]t is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS chapter 656 or has given testimony under the provisions of those laws.” To establish a prima facie case under ORS § 659A.040(1), a plaintiff must show: “(1) that the plaintiff invoked the workers' compensation system; (2) that the plaintiff was discriminated against in the tenure or conditions of employment; and (3) that...