Munger v. Cascade Steel Rolling Mills, Inc.

544 F.Supp.3d 1078

Joseph J. MUNGER, Sr., Plaintiff,

v.CASCADE STEEL ROLLING MILLS, INC., Defendant.

Case No. 3:18-cv-00970-SB

United States District Court, D. Oregon.

Signed June 17, 2021

Benjamin Rosenthal, Portland, OR, for Plaintiff.

Anthony D. Kuchulis, Christine Sargent, Littler Mendelson, PC, Portland, OR, for Defendant.

OPINION AND ORDER

BECKERMAN, United States Magistrate Judge.

Plaintiff Joseph J. Munger, Sr. ("Munger") filed this action against his former employer, Cascade Steel Rolling Mills, Inc. ("Cascade"), alleging violations of the Family Medical Leave Act ("FMLA"), the Oregon Family Leave Act ("OFLA"), and the Oregon Sick Leave Act ("OSLA"). (ECF No. 69.) Now before the Court is Munger's motion for partial summary judgment (ECF No. 72) and Cascade's motion for summary judgment (ECF No. 75). The Court has jurisdiction over this case under 28 U.S.C. §§ 1331 and 1367(a), and all parties have consented to the jurisdiction of a U.S. Magistrate Judge under 28 U.S.C. § 636(c). For the following reasons, the Court grants Cascade's motion for summary judgment, and denies Munger's motion for partial summary judgment.

BACKGROUND

I. CASCADE'S ATTENDANCE POLICIES

For twenty-three years, Munger worked as a billet crane operator at Cascade's steel manufacturing facility in McMinnville, Oregon. (First Am. Compl. ("FAC") ¶¶ 4, 7-8.) Cascade maintains an attendance policy prescribing how employees must report absences. (Decl. of Anthony D. Kuchulis ("Kuchulis Decl.") Ex. 1, ECF No. 76; Decl. of Benjamin Rosenthal ("Rosenthal Decl.") Ex. 3, ECF No. 74.) The policy includes a "call-off" system that requires employees to contact the security gate and notify Cascade of the reason for an absence. (Kuchulis Decl. Ex. 1, at 4; Rosenthal Decl. Ex. 3, at 4.) An employee who incurs an unexcused absence receives an attendance "incident." (Kuchulis Decl. Ex. 1, at 3; Rosenthal Decl. Ex. 3, at 3.) Under Cascade's progressive discipline policy, an employee may incur up to nine incidents within a twelve-month period before they are terminated. (Kuchulis Decl. Ex. 1, at 10; Rosenthal Decl. Ex. 3, at 10.) Prior to 2015, Cascade had no internal written policy specifically pertaining to FMLA or OFLA medical leave. (Dep. of Teresa Smith ("Smith Dep.") at 22:25-23:25; 26:13-18, ECF No. 74.)

In 2010, Cascade engaged a third-party administrator, FMLASource, to process and approve medical leave requests for its employees. (Id. at 7:12-16.) FMLASource followed up with employees directly to certify that the requested absence qualified for the type of leave sought. (Id. at 7:14-25.) In November 2015, Cascade updated its medical leave policy to require all employees to contact FMLASource directly to initiate a FMLA claim. (Pl.’s Ex. 6; Kuchulis Decl. Ex. 14.) The updated policy also provided that a doctor's note presented by an employee would not automatically excuse absences from work. (Pl.’s Ex. 10, at 2; Kuchulis Decl. Ex. 15.) According to Cascade, Human Resources mailed the updated FMLA/OFLA policy to employees on November 2, 2015, and posted the policy update in eight departments throughout the workplace. (Smith Dep. at 57:13-59:5; Kuchulis Decl. Ex. 17; Pl.’s Ex. 5.) Munger denies receiving a copy of the policy in the mail. (Munger Dep. at 96:10-21.)

II. MUNGER'S ABSENCES

A. Fall 2015 Absences

From September 21 through 23, and September 30, 2015, Munger requested FMLA and OFLA leave related to his ongoing medical condition of idiopathic erythromelalgia, and OFLA leave to care for his daughter. (FAC ¶ 9; Munger Dep. at 82:8-24; Pl.’s Exs. 32 and 34.) Munger also sought medical leave for influenza from October 5 through 9, 2015. (Pl.’s Exs. 39-41.) Although Munger provided Cascade with medical notes regarding these absences, Cascade determined that Munger had already exhausted his FMLA and OFLA leave for 2015. (Pl.’s Exs. 32, at 2, 34 at 2, and 44; Munger Dep. at 79:11-15; Kuchulis Decl. Exs. 7, 11.)

On October 8, 2015, Cascade sent Munger a letter notifying him that he had "recently incurred a number of absences that may be subject to the Company's attendance policy." (Kuchulis Decl. Ex. 12.) In the letter, Cascade advised Munger that providing a doctor's note "after-the-fact" will not automatically excuse his absence from work, and that Cascade "will need additional information from your [doctor] to help us determine how the absence will be treated and our obligations moving forward." (Id. at 2.) Cascade assigned Munger attendance "incidents" for the 2015 absences, and suspended Munger from work on October 25, 2015. (Pl.’s Ex. 43.)

B. May 2016 Absences

On May 25, 2016, Munger left work early due to severe abdominal pain.¹ (Munger Dep. at 121:3-122:13; 190:10-16.) That same day, Munger went to the hospital, and his attending physician, Dr. Jeffrey Disney ("Dr. Disney"), diagnosed him with "non-obstructive bowel gas pattern with mildly increased stool." (Kuchulis Decl. Ex. 18.) The hospital administered Munger pain medication, provided him with laxatives, and discharged him later that day. (Decl. of Jeffrey Dwane Disney ("Disney Decl.") ¶ 5.) Dr. Disney provided Munger with two doctor's notes indicating that Munger would return to work on May 27, 2016, and suggested that Munger seek follow-up treatment if his symptoms worsened. (Pl.’s Exs. 50, 52; Disney Decl. ¶ 7.)

On May 25, and 26, 2016, Munger called off absent from work, and e-mailed the two doctor's notes to Human Resources ("HR") at Cascade. On May 27, Teresa Smith ("Smith"), Cascade's HR Director, told another HR staff member that if Munger did not contact FMLASource to request protected medical leave by May 31 as required by Cascade's medical leave policy, Munger would receive incidents for each day not covered by FMLA because he had already exhausted his "sick vacation" hours for the year. (Pl.’s Ex. 60.) On May 31, 2016, at approximately 10 a.m., Kimberly Bartlett, a Cascade staff coordinator, sent Munger an e-mail advising him to contact FMLASource by the end of the day or he would receive three attendance incidents. (Pl.’s Ex. 61; Kuchulis Decl. Ex. 21.) Munger did not contact FMLASource to initiate a FMLA claim on May 31, 2016, nor at any time thereafter. (Munger Dep. at 455:16-21.)

III. MUNGER'S TERMINATION

On June 1, 2016, FMLASource advised Cascade HR employee Gregory Moore ("Moore") that Munger had not contacted FMLASource to request FMLA leave. (Moore Dep. at 105:5-19.) The next morning, Munger's supervisors, Tom Bacon ("Bacon") and David McKenna ("McKenna"), called Munger into a meeting and presented Munger with a discipline notice indicating that Munger would receive three incidents related to the May 2016 unexcused absences.² (Pl.’s Exs. 53-54.) At the meeting, Munger told his supervisors that FMLA and OFLA should cover his absences. (Kuchulis Decl. Ex. 22, at 4:16-25.) Munger confirmed that he had not completed any FMLA paperwork, and he denied receiving the May 31 e-mail from HR advising him to contact FMLASource to submit a FMLA claim. (Id. at 4:18-5:17.) Munger told his supervisors that he had complied with FMLA requirements by calling in and providing his doctor's notes, and that he was not required to provide Cascade with any additional information. (Id. at 8:6-11.) Bacon and McKenna directed Munger to check his e-mail and to follow up with HR regarding his unexcused absences. (Id. at 5:3-5; 9:2-17; Munger Dep. at 148:9-21.)

A few hours later, Cascade called Munger into a second meeting with his supervisors and Moore. Munger insisted on recording the second meeting over the objection of Moore. (Kuchulis Decl. Ex. 23 at 2:9-1.) Moore advised Munger that he was suspended from work pending termination based on his violations of Cascade's attendance policy. (Id. at 2:17-3:8.) After Munger failed to attend a termination meeting scheduled on June 3, 2016, Cascade terminated Munger's employment effective as of June 2, 2016. (See Kuchulis Decl. Ex. 26.)

LEGAL STANDARD

Summary judgment is appropriate if "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). On a motion for summary judgment, the court 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). 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and internal quotation marks omitted).

DISCUSSION

I. FMLA AND OFLA CLAIMS

The parties cross move for summary judgment on Munger's FMLA and OFLA claims. The Court analyzes the claims together, because OFLA claims are to "be construed to the extent possible in a manner that is consistent with any similar provisions of the [FMLA]." OR. REV. STAT. § 659A.186(2) ; see also Sanders v. City of Newport , 657 F.3d 772, 783 (9th Cir. 2011) ("In light of these similar statutory and regulatory provisions, the district court properly applied the same legal standards under FMLA to [Plaintiff's] OFLA claim."); Benz v. West Linn Paper Co. , 803 F. Supp. 2d 1231, 1250 (D. Or. 2011) (noting that Oregon courts look to federal law when interpreting OFLA).

A. Applicable Law

Under the FMLA, employees are entitled to a total of twelve workweeks of leave during any twelve-month period when "a serious health condition ... makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). The goal of the FMLA is "to balance the demands of the workplace with the needs of families," and "to entitle employees to take reasonable...