237 F.3d 1080 (9th Cir. 2001), 99-35071, Snead v. Metropolitian Property & Casualty Ins.

Docket Nº:99-35071
Citation:237 F.3d 1080
Party Name:EMILY SNEAD, Plaintiff-Appellant, v. METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, a Delaware Corporation; JAMES MCINTOSH, Defendants-Appellees.
Case Date:January 23, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1080

237 F.3d 1080 (9th Cir. 2001)

EMILY SNEAD, Plaintiff-Appellant,

v.

METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, a Delaware Corporation; JAMES MCINTOSH, Defendants-Appellees.

No. 99-35071

United States Court of Appeals, Ninth Circuit

January 23, 2001

Argued and Submitted May 4, 2000

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Scott N. Hunt, Esq., Busse & Hunt, Portland, Oregon, for the plaintiff-appellant.

Andrew M. Altschul, Esq., Stoel Rives, Portland, Oregon, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon Garr M. King, District Judge, Presiding.

Before: Donald P. Lay,[*] A. Wallace Tashima, and M. Margaret McKeown, Circuit Judges.

Opinion by Judge Tashima; Dissent by Judge Lay

TASHIMA, Circuit Judge:

The underlying question we must decide in this employment discrimination case arising under Oregon law is whether plaintiff Emily Snead ("Snead") adduced sufficient evidence to survive her employer's, Metropolitan Property and Casualty Insurance Company's ("Met"), motion for summary judgment. We must first decide, however, the threshold question of whether this action is governed by Oregon's special summary judgment procedure applicable to employment discrimination cases or by federal summary judgment rules and procedures.

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I. BACKGROUND

Met is engaged in the sale of home and auto insurance through agents known as Property and Casualty Specialists ("PCS"). These agents, in turn, report to Market Development Managers ("MDM"). Each MDM is responsible for managing 15 to 20 PCS agents. In the Portland market, Met originally hired two MDMs: Snead and Bill Todd. Both reported to James McIntosh, Vice President of the PCS organization. While Snead handled the "Portland North" territory, Todd was assigned to the "Portland South" territory. By 1993, Snead and Todd together managed 33 PCS agents.

In early 1995, Snead was being stalked by one of Met's former employees. She claimed that through the use of the mail and telephone, that former employee harassed and threatened her. She also claims that Met handled the matter poorly, offered little help, and even made light of the situation.1 As a result, she claimed that she suffered emotional distress, which was diagnosed as "Post-Traumatic Stress Disorder and Depression."

After being so diagnosed, Snead sought and was granted a three-month leave of absence, which included a salary continuation under Met's short-term disability program. Snead ultimately extended her request to six months, which was also approved. When Met received Snead's request for an extension, Todd was assigned responsibility for Snead's territory. For administrative convenience, this change was reflected on paper by combining Portland North and Portland South into one market. Although Gary Max, a PCS employee, filled in for Snead, no one was ever hired to replace Snead.

After her short-term disability leave expired, Snead did not return to work. Instead, she went on long-term disability leave. In mid-1996, more than a year after Snead first went on disability leave, Met sent her a letter stating that her long-term disability benefits would end in December 1996, unless she provided medical documentation that she was still disabled. The decision to terminate her long-term disability benefits was partially based on the opinion of Dr. Robert Slack, a Board certified psychiatrist, who opined that, given the stalking incident, "[h]er refusal to return to work is understandable," but that she could still function in other work settings. Snead failed to provide the requested additional information, and thus her disability benefits ended on December 31, 1996. She subsequently faxed McIntosh a medical release stating that she could return to work without any restrictions on February 24, 1997.

Snead expected to be reinstated in her old position. Met's Resources Handbook for Managers states that: "An employee returning from disability will be placed in the job they occupied prior to the disability. An employee returning from a leave of absence may be placed in the same job occupied before the leave of absence or in a reasonably equivalent position at the same salary and rate of pay." But, while Snead was on leave, the staff of Met's Portland office decreased from 33 employees

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in 1993 to 10 in January 1997. Consequently, Met no longer needed two MDMs in the Portland market (or in any market in the United States). As a result, in mid-January 1997, McIntosh called Snead to tell her that her MDM position no longer existed and to discuss her future in the company. Snead and McIntosh disagree about what was said in that conversation. According to Snead, they discussed the possibility that Snead could be moved to another job (local or otherwise), but that she needed specifics about the job and the compensation. On the other hand, McIntosh testified that Snead indicated to him that she was not mobile and did not want to be a PCS agent.

On January 21, 1997, McIntosh sent Michael Dineen, a Human Resources representative, an e-mail about his conversation with Snead, stating:

I told her that the PCS program has undergone major changes and that there is not a MDM position avail able in Portland at this time. I did inform her that there might be a MDM position in another market and asked her if she is mobile. She informed me that she is not. She also has no intentions of becoming a PCS. She basically expected a comparable position at the same salary rate, with bonuses, AND be able to work out of her home. I again stated that we have no desire to grow the market to require additional management.2

McIntosh and Bill Moore, Vice President of Sales, also discussed Snead's position and the need to eliminate one of the Portland MDMs. According to Snead, however, this was the first time that McIntosh discussed that need with Moore (his superior) who until the time of Snead's call, had expected her to return to her old position.3 Nonetheless, Moore agreed with McIntosh's decision to reduce the number of MDMs in the Portland market.

On February 14, 1997, McIntosh wrote to Snead to confirm their earlier conversation and to confirm that the position that she held as MDM was determined to be "excess."4 The letter stated that Snead could explore a PCS agent position supervised by Todd. Snead would be paid an unspecified "base salary as well as commission." McIntosh's letter also stated that as of February 24, 1997, her status as an "excess employee" made her eligible for "an enhanced separation allowance."5 Snead's attorney responded on February 20, 1997, stating that Snead was not interested in a demotion to a PCS agent position. Consequently, on March 19, 1997, the Director of Human Resources wrote to Snead to inform her that her discontinuance would be processed effective March 31, 1997, unless Snead communicated to Met that she was interested in a PCS agent position or in relocating. Pending a response, the Human Resources Department drafted a "Job Related Turnaround Document" on March 19, 1997, listing March 31 as the effective date of Snead's termination.

On March 31, 1997, Snead's attorney requested further information regarding the specifics of the PCS agent position. Upon receipt of the request for information, however, Met's attorney stated that "[b]y the time [he ] received [Snead's attorney's]

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letter of March 31, 1997 it was too late to forward it to [Met] for receipt the same day." Accordingly, Snead's termination took place as scheduled on March 31, 1997. Less than two months later, Met wrote Todd and all the PCS agents in Portland to inform them that they would be laid off as the result of a decision to close the Portland office. Met ultimately terminated Todd in August 1997. There is still one PCS agent in Portland who reports to a MDM in Seattle.

As a result of her termination, Snead commenced this state law disability discrimination case in Oregon state court, claiming violation of § 659.436 of the Oregon Revised Statutes. The case was timely removed to federal court on the basis of diversity of citizenship jurisdiction. The district court granted defendants' motion for summary judgment because Snead failed to establish that she was terminated because of her disability. Snead timely appeals from the judgment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. See Botosan v. Paul McNally Realty, 216 F.3d 827, 830 (9th Cir. 2000). In so doing, we apply the same standard used by the district court under Federal Rule of Civil Procedure 56(c)--namely, viewing the evidence in the light most favorable to the non-moving party, we must decide whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).

III. DISCUSSION

A. The Prima Facie Case

Section 659.436 provides that"[i]t is an unlawful employment practice for any employer to . . . discharge from employment . . . an otherwise qualified person [because such person] is a disabled person." Or. Rev. Stat.S 659.436 (1999). The standard for establishing a prima facie case of discrimination under Oregon law is identical to that used in federal law. See Henderson v. Jantzen, Inc., 719 P.2d 1322, 1323-24 (Or. Ct. App. 1986); see also Or. Rev. Stat.S 659.449 (providing that Oregon's discrimination laws "shall be construed to the extent possible in a manner that is consistent with any similar provision of the federal Americans with Disabilities Act of 1990 [`ADA'], as amended"). Snead alleges that she was terminated because of her disability. Therefore, to establish a prima facie case...

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