Arnold v. Pfizer, Inc.

• Decision Date: 09 September 2013
• Docket Number: Civ. No. 3:10–cv–1025–AC.
• Citation: 970 F.Supp.2d 1106
• Parties: Kimberley ARNOLD, Plaintiff, v. PFIZER, INC., Defendant.
• Court: U.S. District Court — District of Oregon

970 F.Supp.2d 1106

Kimberley ARNOLD, Plaintiff,

v.PFIZER, INC., Defendant.

Civ. No. 3:10–cv–1025–AC.

United States District Court, D. Oregon.

Sept. 9, 2013.

Carl Lee Post, Daniel J. Snyder, Cynthia J. Gaddis, Law Offices of Daniel Snyder, Portland, OR, for Plaintiff.

Heidi A. Guettler, Jackson Lewis LLP, Portland, OR, Karen D. Simpson, Nicky Jatana, Jackson Lewis LLP, Los Angeles, CA, for Defendant.

OPINION AND ORDER

JOHN V. ACOSTA, United States Magistrate Judge.

Introduction

Plaintiff Kimberly Arnold (“Arnold”) brings this employment lawsuit against defendant Pfizer, Inc. (“Pfizer”) arising from a prior employment relationship. Arnold alleges claims of discrimination and retaliation under Title I of the Americans with Disabilities Act (“the ADA”), 42 U.S.C. § 12101 et seq.; discrimination and retaliation under the Oregon Rehabilitation Act, Oregon Revised Statutes (“ORS”) 659A.100 et seq.; retaliation for filing a workers compensation claim, in violation of ORS 659A.040; violation of the Family and Medical Leave Act (“the FMLA”), 29 U.S.C. § 2601 et seq., and wrongful termination. Pfizer moves for summary judgment on all claims. For the reasons below stated, Pfizer's motion is granted as to Arnold's Oregon Rehabilitation Act retaliation, workers compensation retaliation, and wrongful termination claims. The motion is denied as to Arnold's ADA discrimination and retaliation, Oregon Rehabilitation Act discrimination, and FMLA claims.

Factual Background

Arnold began working at Pfizer in 1996 as a sales representative. (Jatana Declaration (“Decl.”), Exhibit (“Ex.”) B at 17, 20.) Sales representatives “call on physicians, hospitals and other healthcare providers to explain the benefits of and to sell Pfizer's pharmaceutical products.” (Jennings Decl. ¶ 5.) Sales representatives report to a district manager. Id. Arnold's employment with Pfizer was “at will.” (Jatana Decl., Ex. B at 18.) Arnold's employment was also governed by the Prescription Drug Marketing Act (“PDMA”), of which she was aware and with which she knew she was obligated to comply. (Jatana Decl., Ex. B at 20.) Arnold was aware of Pfizer's policy of encouraging employees to register problems or complaints with management, or “anybody up the chain of command.” (Jatana Decl., Ex. B at 26.) Arnold testified that she was aware of Pfizer policies and her obligation to comply with them, as well as those requirements set forth under the PDMA. (Jatana Decl., Ex. B at 28–44.) ¹

One of Arnold's duties as a sales representative was to furnish healthcare providers with samples of Pfizer products, a practice referred to as “sampling.” (Jatana Decl., Ex. B at 29.) Starters are samples given to physicians and their distribution must be documented. (Jatana Decl., Ex. B at 29–30.) Arnold was aware that she was required to accurately document all starter activity by way of a Starter Activity Form (“SAF”). (Jatana Decl., Ex. C at 10–11.) The SAFs state that starter activity should be entered and synchronized daily. (Jatana Decl., Ex. C at 12.) According to Arnold, during her eleven-year tenure with Pfizer in Oregon, “no Pfizer manager, supervisor, or official ever talked to [her] about the [SAFs] until May 27, 2009, a few weeks before [she] was terminated.” (Arnold Decl. ¶ 9.)

In 1999, Arnold received a promotion to Specialty Healthcare Representative and was transferred to Portland. (Jatana Decl., Ex. B at 21; Arnold Decl. ¶ 8.) Arnold was promoted twice more by Pfizer, to Cardiovascular Specialty Healthcare Representative and Senior Cardiovascular Specialty Representative. (Arnold Decl. ¶ 11–12.) On September 1, 2005, Pfizer reorganized and laid off much of its workforce. (Arnold Decl. ¶ 17.) Arnold was not laid off but, in order to stay in Portland, she relinquished her position as a Specialty Healthcare Representative and took a position as a Primary Care Healthcare Representative. (Jatana Decl., Ex. B at 21–22, 68; Arnold Decl. ¶ 17.)

Between 2001 and 2005, Arnold went on medical leave three times. The first was following her pregnancy, the second for surgery to remove her gallbladder, and the third after she broke her foot. (Arnold Decl. ¶ 18.) Each time, Arnold was returned to the same position and the same rate of pay she enjoyed prior to going on medical leave. (Jatana Decl., Ex. D at 8–11, 14–15.) ²

On September 16, 2005, Arnold was driving on the job when she was hit by a FedEx delivery truck. (Jatana Decl., Ex. B at 68.) Arnold subsequently sued FedEx for negligence. (See Complaint, Jatana Decl. Ex. B at 81–83.) Around the same time, Arnold again went on medical leave, or short-term disability, as the result of injuries sustained in the accident. (Arnold Decl., Exs. 4, 5.) Dr. Agatha Nody (“Dr. Nody”) and Nurse Jenny Mark (“Nurse Mark”), with Pfizer, are responsible for approving short-term disability and scheduling independent medical examinations (“IME”). (Jatana Decl., Ex. B at 52.)

Arnold informed Pfizer that she was ready to return to work in early 2006. On March 1, 2006, Dr. Nody wrote to Arnold, informing her that although Pfizer had received her “Return to Work Status form,” she was required to undergo an IME to ensure her readiness to return to work. The letter advised Arnold that she would be contacted by a third party, Unival, about scheduling the IME. (Arnold Decl., Ex. 6.) The examination was subsequently scheduled for March 16, 2008, with Dr. Thomas P. Anderson, M.D. (“Dr. Anderson”). (Arnold Decl., Ex. 7 at 1.) The day before, March 15, 2006, Arnold underwent a “Functional Capacity Evaluation” (“FCE”), administered by Healthsouth Mountain View and physician Jeff Gerry, M.D. (“Dr. Gerry”). Dr. Gerry deemed Arnold fit to perform light work, leaving her able to lift twenty pounds occasionally and ten pounds frequently. (Arnold Decl., Ex. 8 at 1.)

Arnold was not cleared to work by the March 16, 2006, IME. (Arnold Decl. Ex. 10.) In an April 16, 2006, email to Carol Crane (“Crane”), Arnold stated that she wished to return to work full time, would attempt to schedule another IME, and was concerned that her position had been posted on Pfizer's website. (Arnold Decl. Ex. 10.) The next day she emailed Dr. Nody and Nurse Mark, expressing her desire to schedule another IME in light of her improved condition. (Arnold Decl. Ex. 11.) A letter from Dr. Nody stated that Arnold's short-term disability benefits would exhaust on March 17, 2006. (Arnold Decl. Ex. 9.)

On April 26, 2006, Arnold underwent another IME, conducted by Dr. Edward Grossenbacher (“Dr. Grossenbacher”), wherein Arnold was found capable of operating a motor vehicle, lifting up to twenty-five pounds, and returning to her position at Pfizer. (Arnold Decl. Ex. 14.)

Arnold again took leave, between October 31, 2006, and the end of June 2007, for cervical spine surgery, the result of her motor vehicle accident with FedEx. (Arnold Decl., Ex. 15 at 1; Jatana Decl., Ex. D at 32.) Arnold was approved for short-term disability benefits from November 6, 2006, through December 15, 2006. (Arnold Decl., Ex. 15 at 1.) She applied for long-term disability, which request was denied. While still on short-term disability leave, Arnold noticed that her position had been posted online as an available position at Pfizer. In a February 27, 2007, email sent to Dr. Nody and Nurse Mark, Arnold stated she was ready to return to work on April 1, 2007, and asked if she needed another IME. Dr. Nody responded that an updated IME was required and that she would “proceed to schedule the IME.” (Arnold Decl. Ex. 16.) On April 16, 2007, Arnold was released for “modified work” by Dr. Anderson beginning on April 30, 2007. (Arnold Decl. Ex. 17.)

Pfizer informed Arnold she would have to “undergo a Fitness for Duty (FFD) examination” prior to her return and extended Arnold's short-term disability benefits through May 6, 2007. (Arnold Decl., Ex. 18.) Arnold emailed Crane, stating that she wanted to return to work and was concerned about her position being posted in the meantime. (Arnold Decl. Ex. 19.) In a May 4, 2007, letter, Dr. Nody informed Arnold that she would need to obtain an FFD evaluation, including an FCE, prior to returning to work. Arnold testified that Pfizer put off scheduling an IME until after her short-term disability ran out. (Jatana Decl., Ex. D at 40.)

On May 29, 2007, Julie Jennings (“Jennings”), Senior Manager of Human Resources at Pfizer, notified Arnold by letter that her short-term disability had exhausted as of May 6, 2007, and that Pfizer policy permitted it to reassign Arnold “to a Regional Representative territory in [her] current district” and to “fill [her] vacant territory.” (Arnold Decl. Ex. 21.) On June 4, 2007, Arnold emailed to Jennings in response, arguing that she had complied with all of Pfizer's requirements, but that Pfizer personnel unreasonably delayed scheduling the examinations that would permit her to return to work. (Arnold Decl., Ex. 25.) This prompted a series of emails amongst Pfizer personnel regarding whether there had, in fact, been a delay in scheduling the necessary tests and whether Arnold's position should continue to be posted online. (Arnold Decl. Ex. 24.) The consensus was that the posting should be taken down. Id. Arnold's email also prompted Jennings to forward the exchange to Crane, stating: “Carol, please file and keep record of this. I think we[ ]should maintain electronic or paper files once a[ ]disability starts down this type of road.” (Arnold Decl. Ex. 28.)

On June 8, 2007, Arnold's FCE issued, stating that she could return to work, but limiting her to lifting twenty pounds occasionally and ten pounds frequently. (Arnold Decl., Ex. 27 at 1.) On June 18, 2007, Arnold's IME took place and Dr. Grossenbacher cleared Arnold to work with light duty restrictions. (Arnold Decl., Ex. 31 at 1, 4.) Pfizer was in receipt of the IME by at least June 21, 2007, and Arnold was back to work by the end of the month. (Arnold Decl. Ex. 32, 34.) Arnold's 2007...