Le Roux v. Cent. Or. Truck Co.

MICHAEL LE ROUX, Plaintiff, v. CENTRAL OREGON TRUCK COMPANY, INC., an Oregon Corporation, Defendant.

Case No. 6:17-cv-00533-JR

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

June 28, 2018

OPINION AND ORDER

RUSSO, Magistrate Judge:

Defendant Central Oregon Truck Company, Inc., ("COTC") moves for summary judgment on plaintiff Michael Le Roux's claims pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, defendant's motion is denied.

BACKGROUND

Plaintiff began working for COTC in January 2015 as a commercial truck driver. Compl. ¶ 6 (doc. 1). Throughout his first year at COTC plaintiff did not receive a single citation. Le Roux Decl. ¶ 8 (doc. 26). In January 2016, plaintiff was assigned trailer 413Q which was approximately 10 years old. Le Roux Decl. ¶ 14 (doc. 26). Throughout the three months driving trailer 413Q plaintiff received six citations. Compl. ¶ 10 (doc. 1). Plaintiff repeatedly reported problems with trailer 413Q to his supervisors in the daily Driver Vehicle Inspection Reports ("DVIRs") and in emails. Le Roux Decl. ¶¶ 15-29. (doc. 26).

On April 7, 2016, plaintiff was ticketed for being overweight on the axles. Le Roux Decl. ¶ 34. (doc. 26). Plaintiff reported on his April 7, 2016, DVIR that the "truck, trailer, and load were difficult to weigh due to changing air pressures on [the] tag axles." Id. After dropping off the load, plaintiff wrote an email in which he informed his employers he was "not hauling any more loads with this truck or trailer until the issues [were] corrected." Le Roux Decl. Ex. 12, at 2 (doc. 26-12). The COTC dispatcher, Ms. Cantrell, responded with a message indicating plaintiff would not be permitted to return with an empty truck and instructed him to pick up a load in Clarkston, Washington. Le Roux Decl. Ex. 13, at 1 (doc. 26-13). On the morning of April 8, 2016, plaintiff spoke with his supervisor, who assured plaintiff he would find a lighter load for him so he would not be overweight on the axles. Le Roux Decl. ¶ 37. (doc. 26).

Ms. Cantrell dispatched the details for the lighter load to plaintiff. Le Roux Decl. Ex. 14 (doc. 26-14). In the dispatch Ms. Cantrell listed the pick-up time as 3:30 PM. Le Roux Decl. Ex. 14, at 1 (doc. 26-14). The correct pick-up time was 3:00 PM. Plaintiff arrived at Bennett Lumber around 3:03 or 3:04 PM, nearly 30 minutes before he was instructed to be there. Bennett Decl. Ex. 9, at 12 (doc. 27-9). Upon his arrival, plaintiff found that all of the Bennett Lumber employees had gone home and the lumber yard was locked and deserted. Bennett Decl. Ex. 9, at 12 (doc. 27-9). When he contacted his employer he was informed he should spend the night in Clarkston, Washington, rent a car on Saturday morning and drive 350 miles to return home andthen drive 350 miles back to Clarkston by Monday morning to pick up the load at Bennett Lumber. Le Roux Decl. ¶ 41 (doc. 26). It is unclear whether COTC would have reimbursed plaintiff for the costs of the hotel room and rental car. At this point plaintiff concluded his employer was "trying to frustrate [him] to the point that [he] would quit." Le Roux Decl. ¶ 41 (doc. 26). Plaintiff sent in his resignation and informed his supervisors he would return the truck that evening. Le Roux Decl. ¶ 42 (doc. 26). COTC employees called plaintiff and left voicemails threatening him with jail if he did not stop the truck and turn it around. Le Roux Decl. ¶ 43 (doc. 26); Bennett Decl. Ex. 5, at 7-8 (doc. 27-5).

Throughout his employment, plaintiff repeatedly requested that his employer repair trailer 413Q. Two days after plaintiff resigned, COTC began significant efforts to repair the trailer. Bennett Decl. Ex 6, at 15 (doc. 27-6). Within seven weeks of plaintiff's resignation, COTC had spent almost four thousand dollars on repairs to trailer 413Q. See Bennett Decl. Ex. 6 (doc. 27-6). Shortly thereafter, the trailer was placed in storage and no longer used. Bennett Decl. Ex. 13, at 26 (doc. 27-13).

On April 4, 2017, plaintiff filed a complaint against defendant asserting claims of retaliation for reporting safety concerns under the Surface Transportation Assistant Act ("STAA"); retaliation for refusing to operate a commercial vehicle that violates a safety standard under the STAA; and whistleblower retaliation under Oregon law. Compl. (doc. 1).

STANDARD OF REVIEW

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show "there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc.v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.

Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630-31.

DISCUSSION

Defendant argues summary judgment is proper as to plaintiff's claims for relief, and that partial summary judgment is proper on each of plaintiff's claims for lost wages and benefits.

I. Retaliation for Reporting a Violation of a Safety Regulation

Plaintiff alleges he was retaliated against for reporting safety concerns under the STAA. 49 U.S.C. § 31105(a)(1)(A). The STAA prohibits an employer from discharging, disciplining, or discriminating against an employee regarding pay, terms, or privileges of employment because:

the employee, or another person at the employee's request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order, or has testified or will testify in such a proceeding[.]

49 U.S.C. § 31105(a)(1)(A)(i). Defendant argues that plaintiff's complaint does not allege that any commercial motor vehicle safety or security regulation has been violated.

Plaintiff, however, alleges that defendant violated 49 C.F.R. § 396.3(a) which requires that "[e]very motor carrier . . . must systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles . . . subject to its control." Plaintiff also alleges defendant violated 49 C.F.R. § 396.11(3) which directs that "[p]rior to requiring or permitting a driver to operate a vehicle, every motor carrier . . . shall repair any defect or deficiency listed on the driver vehicle inspection report which would be likely to affect the safety or operation of the vehicle." Plaintiff further alleges that on February 25, 2016, he was ticketed because the trailer was in violation of three separate safety regulations: overweight on the axles in violation of 49 C.F.R. § 392.2; side hose chafing in violation of 49 C.F.R. 393.45(b)(2); and driver side brake chamber leaking air in violation of 49 C.F.R. § 396.3(a)(1). See Le Roux Decl. Ex. 5, at 2 (doc. 26-5). Plaintiff reported these defects in his DVIRs and repeated repair requests.

Plaintiff has fulfilled his obligation to file "a complaint . . . related to a violation of a commercial motor vehicle safety or security regulation, standard, or order," because internal reports to an employer are sufficient to qualify as "complaints" under 49 U.S.C. § 31105(a)(1)(A). See Clean Harbors Envtl. Servs. v. Herman, 146 F.3d 12, 22-23 (1st Cir. 1998); Moon v. Transport Drivers, Inc., 836 F.2d 226, 228-29 (6th Cir. 1987); Yellow Freight Systems, Inc. v. Reich, 38 F.3d 76, 83-84 (2nd Cir. 1994); Manske v. UPS Cartage Servs., Inc., 870 F.Supp.2d 185, 203-05 (D. Me. 2012).

Defendant next argues there was no evidence of any retaliation against plaintiff because none of the alleged adverse actions rise to the level of "material adversity" required to demonstrate retaliation. Young Bolek v. City of Hillsboro, 2016 WL 9455411, *12 (D. Or. 2016). "To be materially adverse, an action need not rise to the level of an ultimate employeeaction, such as discharge. However, actions such as a lateral transfer, an unfavorable job reference, or a change in work schedule may be sufficiently severe" to qualify as materially adverse. Young Bolek, 2016 WL 9455411 at *12 (citing Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000)). "The requirement to prove 'material' adversity precludes claims grounded in 'petty slights, minor annoyances, and simple lack of good manners' that do not rise to a level that will deter an employee from lodging a report." Young Bolek, 2016 WL 9455411 at *12 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).

Plaintiff asserts the following actions amounted to retaliation: failure to provide a safe trailer; failure to reimburse him for his tickets and legal expenses caused by driving an unsafe trailer; sending him to Clarkston, Washington for a load defendant knew would not be available; threatening him with police intervention and jail; and failing to rehire him or make him eligible for rehire. Plaintiff argues the defendant created these discriminatory conditions with the intent to cause plaintiff to quit which amounted to constructive termination. Compl. ¶ 6, 23 (doc. 1).

Defendant argues there is no evidence the trailer was unsafe; rather, "the issues plaintiff was...