Davis v. Con-Way Freight Inc.

139 F.Supp.3d 1224

Johnny Davis, IV, Plaintiff,

v.Con–Way Freight Inc., Con–Way Inc., Con–Way Western Express, Defendants.

No. 3:14-cv–01389–HZ

United States District Court, D. Oregon.

Signed October 4, 2015

Charese A. Rohny, Charese Rohny Law Offices, 1515 S.W. Fifth Ave., Suite 1010, Portland, OR 97201, Mark Gillis McDougal, Kafoury & McDougal, 411 S.W. Second Ave., Suite 200, Portland, OR 97204, Attorneys for Plaintiff

Margaret S. Fonberg, Paul C. Buchanan, Buchanan Angeli Altschul Sullivan, LLP, 321 S.W. Fourth Ave., Suite 600, Portland, OR 97204

OPINION & ORDER

HERNÁNDEZ, District Judge:

Plaintiff Johnny Davis brings this employment discrimination action against his former employer, Defendant Con–Way Freight, Inc.¹ Plaintiff claims that Defendant discriminated against him because of his perceived or actual disability, in violation of ORS 659A.112. In addition, Plaintiff brings a claim of wrongful discharge, alleging that he was terminated for invoking his right to health care benefits.

Defendant moves for summary judgment on both claims. Defendant asserts that Plaintiff was terminated for failing to report damage to a company trailer, a legitimate and nondiscriminatory reason. In addition, Defendant argues that Plaintiff's wrongful discharge claim is preempted by ERISA. Finally, Defendant asks for an award of attorney's fees, contending that Plaintiff's claims are "frivolous, unreasonable, or without foundation." See ORS 659A.885(1).

The Court heard oral argument on Defendant's motion on August 31, 2015. For the reasons that follow, the Court grants Defendant's motion for summary judgment. However, the Court denies Defendant's request for attorney's fees.

BACKGROUND

Plaintiff worked as a truck driver and sales representative for Defendant from July, 1995 through his termination in November of 2012. Second Amended Complaint ("SAC") ¶¶ 5, 21; ECF 29. Plaintiff received positive performance reviews throughout his 17 years as Defendant's employee. Id. at ¶ 12. He also received awards—two state truck-driving championships and a safety award for ten years of having no preventable accidents. Rohny Decl. Ex. CC at 141:25–142:23, ECF 47.

I. Plaintiff's alleged disability

In 2004, Plaintiff was diagnosed with chronic myeloid leukemia. SAC at ¶ 6. He gave notice to Defendant by submitting numerous doctor notes. Id. Plaintiff was placed on short-term disability for six months in 2004 while undergoing cancer treatment. Id. at ¶ 7. Since then, Plaintiff's condition has been at times in remission and episodic. Id. at ¶ 8. Even though Plaintiff's cancer is controlled, he continues to have cancer cells in his body and he requires ongoing care and treatment. Davis Decl. ¶ 2, ECF 48. Plaintiff was prescribed Gleevec, which costs approximately $80,000 per year in addition to accompanying medical testing. Id. at ¶ 9.

Plaintiff's chronic myeloid leukemia and the expense of his treatment were common knowledge among his co-workers and managers. Rohny Decl. Ex. Z at 137:3–138:19, ECF 47; Mays Decl. ¶ 9, ECF 45. Specifically, the following managers knew that Plaintiff had leukemia or was a cancer survivor: Clackamas Service Center Manager Jack Baranowski, Freight Operations Manager Aaron Macy, Personnel Supervisor Steve Johnson, and Regional Director of Operations Mark Gantenbein. Rohny Decl. Ex. AA at 70:14–72:4, ECF 47; Rohny Decl. Ex. BB at 40:11–41:9, ECF 47; Rohny Decl. Ex. CC at 12:22–13:5, ECF 47; Rohny Decl. Ex. DD 8:6–8:9, ECF 47. Sometimes, Plaintiff discussed his health issues with Dr. Bud, a "wellness coach" Defendant hired to "deliver Con-way's messages on health and wellness and facilitate Con-way's wellness program." Davis Decl. ¶ 3, ECF 48. In addition, Plaintiff was "known for being vocal, boisterous, and speaking his mind about his cancer and health insurance." Mays Decl. ¶ 9, ECF 45.

On or about September 14, 2012, Plaintiff learned that he had lost his major molecular response to the Gleevec medication, which could mean that leukemia cells mutated, the leukemia could return, or Plaintiff would need a new drug therapy. Id. at ¶ 15. During the fall of 2012, Plaintiff volunteered to do extra shifts on the weekend in order to afford his increasing health insurance premiums and costs. Id. at ¶ 17.

II. "Regarded as disabled"

On November 12, 2012, Plaintiff was sent home from work following an emotional interaction with one of Plaintiff's managers, Freight Operations Supervisor Dean Pierce. Rohny Decl. Ex. L, ECF 47. Plaintiff contends Defendant regarded Plaintiff as disabled when Mr. Pierce determined that Plaintiff was "not fit to drive or work because of [Plaintiff's] mental or physical health condition." SAC ¶ 30.

III. Defendant's "culture of health and wellness"

Defendant uses a self-insured group health plan for its employees.² Hart Dep. at 9:12–9:16, ECF 51–1. In 2011 and 2012, Defendant's health care costs were rising. Id. at 9:15–9:16. After the Affordable Care Act passed, Plaintiff heard multiple discussions from Defendant's Human Resources Department employees and managers about health insurance, frustration with rising health care costs, and attempts to contain Defendant's healthcare costs. Davis Decl. ¶ 7, ECF 48. Frequently, these discussions occurred during daily driver meetings. Id. Plaintiff vocally opposed any reduction in employee benefits or rise in premiums. Id. at ¶ 8. Plaintiff raised concerns about being able to afford medication and treatment for his chronic myeloid leukemia if costs continued to increase and benefits decreased. Id.

Defendant implemented various initiatives designed to promote employee health and lower Defendant's health care costs, including distributing brochures about healthy lifestyles, requiring employees to watch movies about getting healthy, and bringing in Dr. Bud to speak to Defendant's drivers. Id. at ¶¶ 3, 12, 13. Defendant's focus on health, wellness, and the cost of health care caused many employees to openly discuss the fact that Defendant was having difficulty paying high medical bills. Mays Decl. ¶ 15, ECF 45.

On or about October 29, 2012, open enrollment began for 2013 health insurance for Defendant's employees. SAC ¶ 14. During the open enrollment period, Defendant "bombarded" employees with information about Defendant's health insurance plan, its rising healthcare costs, and the need to complete blood or other lab work and submit it along with a health assessment. Davis Decl. ¶ 14, ECF 48. Defendant's employees received a substantial financial incentive to get a health screening, complete a health assessment, and complete open enrollment by November 20, 2012. Id.

IV. Defendant's Damage Reporting Policy

Defendant requires its drivers to perform both pre-trip and post-trip inspections of the vehicles they use. Davis Dep. at 34:10–36:12, 63:13–22; ECF 40–6. Drivers are required to report any damage on their Driver Vehicle Inspection Report (DVIR). Id. Defendant implemented these requirements in order to comply with federal Department of Transportation regulations. Huner Dep. at 152:2–11, ECF 40–9.

Under Defendant's Policy 541, failure to report damage or an accident is grounds for termination. Id. at 148:8–159:11. Policy 541 states:

The following list of work and conduct standards is not meant to be all-inclusive, but is representative of unacceptable performance and behavior which may be subject to discipline up to and including termination.

* * *

Failure to Report an Accident, Damage to Company/Other's Property or Other Incidents to the Company. For example, failure to report a dropped trailer, vehicular crashes, damage to company property such as vehicles, fences, forklifts, trailers, etc., will result in termination of employment.

Withrow Decl. Att. A, ECF 38–1 (emphasis in original).

The requirements of Policy 541 were understood by Plaintiff. Davis Dep. at 35:10–36:12, 56:8, 63:13–64:15; ECF 40–6. Plaintiff also understood that if a supervisor is present when an employee notes damage to company property, the proper protocol is to report the damage to the supervisor and have the supervisor sign the DVIR. Id. at 36:4–9. If there is nobody at the terminal at the time the damage is noted, the policy calls for the employee to document the damage and write "DT" next to it, which means "dark terminal." Id. at 36:10–12.

V. Plaintiff's Failure to Report Damage

On Sunday, November 4, 2012, Plaintiff did a "line haul" (also called a "line run") between Defendant's Clackamas and Medford terminals. Davis Decl. ¶ 18, ECF 48. A line haul is a long-distance trip which, in this case, involved taking loaded truck trailers from the Clackamas facility, dropping them off at the Medford terminal, and then picking up designated trailers in Medford and bringing them back to the Clackamas facility. Baranowski Decl. ¶ 8, ECF 39. Plaintiff forgot the key to the Medford terminal; therefore, he called his manager Mr. Baranowski, who called the Medford manager, Sean Umina. Davis Decl. Ex. RR, ECF 48. Mr. Umina went to the Medford terminal and let Plaintiff inside. Rohny Decl. Ex. EE at 6:15–7:9, ECF 47.

Plaintiff conducted a pre-trip inspection of the two trailers he picked up to take back to the Clackamas terminal. Davis Decl. ¶ 18, ECF 48. Plaintiff noticed existing damage on a corner panel of one of the trailers. Id. Plaintiff described seeing the following damage: "sheet metal was torn off and there was [sic] scrapes and gauges on side." Davis Decl. Ex. RR at 2, ECF 48. Plaintiff testified that the damage was "significant." Davis Dep. at 226:19, ECF 40–6. However, Plaintiff testified that he did not have an accident or otherwise cause the damage to the corner panel. Id. In addition, Plaintiff declares that "at no point did any Con-way manager or employee tell me that they believed that I had had an accident or otherwise caused the damage to the trailer." Davis Decl. ¶ 23, ECF 48. Defendant offers no evidence or testimony to the contrary.

Despite noticing damage to one of the trailers, Plaintiff failed to make...