Dunlap v. Liberty Natural Prods., Inc.

• Court: U.S. District Court — District of Oregon
• Writing for the Court: Michael H. Simon
• Decision Date: 25 November 2013
• Docket Number: Case No. 3:12-cv-01635-SI
• Citation: Dunlap v. Liberty Natural Prods., Inc., Case No. 3:12-cv-01635-SI (D. Or. Nov 25, 2013)
• Parties: TRACY DUNLAP, Plaintiff, v. LIBERTY NATURAL PRODUCTS, INC., Defendant.

TRACY DUNLAP, Plaintiff, v. LIBERTY NATURAL PRODUCTS, INC., Defendant.

Case No. 3:12-cv-01635-SI

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

DATED: November 25, 2013

OPINION AND ORDER

Kerry M. L. Smith, Smith & Fjelstad, 722 N. Main Avenue, Gresham, OR 97030. Attorney for Plaintiff.

Jean Ohman Back and Leora Coleman-Fire, Schwabe, Williamson & Wyatt, P.C., Pacwest Center, 1211 S.W. 5th Avenue, Suite 1900, Portland, OR 97204. Attorneys for Defendant.

Michael H. Simon, District Judge.

Plaintiff Tracy Dunlap ("Dunlap") brings this suit against her former employer Defendant Liberty Natural Products ("Liberty") alleging discrimination based on disability under the Americans with Disabilities Act and Or. Rev. Stat. § 659A.122 (collectively "ADA"), discrimination for using the Oregon workers' compensation system under Or. Rev. Stat. § 659A.040, failure to reinstate or reemploy under Or. Rev. Stat. §§ 659A.043 and 659A.046, and discrimination for filing claims with the Oregon Bureau of Labor and Industries ("BOLI")and the Equal Employment Opportunity Commission ("EEOC") under Or. Rev. Stat. § 659A.199. On July 26, 2013, Liberty filed a Motion for Summary Judgment against all of Dunlap's claims. Dkt. 21. For the reasons that follow, the Court grants in part and denies in part Liberty's Motion for Summary Judgment.

BACKGROUND

Liberty is a small business that grows, imports, and wholesale distributes botanical ingredients and natural products. Dunlap began working for Liberty in 2006 as a shipping clerk. Although the parties disagree about what are the essential functions of the shipping clerk position, they agree that before Dunlap's injury in 2010, her primary tasks included: (1) auditing items to be shipped ("auditing process"); (2) wrapping and boxing the items to be shipped ("boxing process"); and (3) weighing the box and preparing the invoice for shipping ("shipping process"). The auditing process included regular lifting of products that weighed less than one pound, regular lifting of items that weighed eight to ten pounds, and occasional lifting of items that weighed 30 to 55 pounds. The boxing process included repetitive tape gun usage while constructing boxes, occasional lifting of up to 30 pounds, regular pushing of up to 35 pounds, and occasional pushing of 50 pounds or more. The shipping process included lifting and stacking boxes, most of which weighed two to 35 pounds, but some of which weighed between 35 and 50 pounds.

In July 2010, Dunlap notified Liberty that her left elbow was injured from repetitive trauma while working at Liberty. Liberty promptly made adjustments to Dunlap's work station and chair. In October 2010, when Dunlap's elbow pain persisted, she initiated a workers' compensation claim. Dunlap met with Liberty's general manager and safety representative to discuss the injury. Dunlap could no longer complete the auditing, boxing, or shipping processes for large or heavy orders. Additionally, she could not construct or tape boxes with the tape gun.On December 17, 2010, Dunlap received a Notice of Acceptance regarding her workers' compensation claim, informing her that she would lose her rights to reinstatement if she was determined to be not physically able to return to her job or if she failed to request reinstatement within seven days of receiving a notice from the insurer that she had been released to work.

Liberty believed that Dunlap's injury was temporary and, therefore, arranged a temporary accommodation for Dunlap by having other staff members assemble and tape boxes for Dunlap and assist her with heavy orders. Dunlap alleges that this accommodation was working well and that she did not know it was only temporary. Liberty alleges, however, that these temporary accommodations became onerous to maintain because other employees had to perform all of their own duties in addition to significant aspects of Dunlap's duties. As an alternative light duty accommodation, Liberty asked Dunlap to work in the customer service department. Within two weeks, Dunlap asked to be moved back to the shipping department. Liberty asserts that Dunlap did not perform adequately in the customer service department because she was avoiding contact with customers.

In October 2011, other shipping department employees complained to Liberty regarding the physical toll caused by performing Dunlap's heavier job duties in addition to their own. Liberty made a second attempt to move Dunlap to the customer service department. Liberty states that Dunlap again performed poorly in this department, avoiding phone calls and other interactions with customers. Because of this, Liberty decided that the customer service position was not a suitable long-term role for Dunlap.

On January 6, 2012, Dunlap participated in a physical capacity evaluation ("PCE").¹ The PCE findings restricted Dunlap from lifting and carrying heavy objects. The PCE did not identify any other physical restrictions. Liberty alleges that it never received a copy of the PCE report and was not informed of the findings from the evaluation.

On March 8, 2012, Liberty's workers' compensation insurer sent a Notice of Closure² to Dunlap regarding her elbow injury. The Notice of Closure stated that Dunlap's attending physician had found that Dunlap was not released to regular work but only to modified or restricted duty. Because of this, Dunlap was entitled to permanent partial disability. At this time, Liberty did not have a modified or restricted duty position available, and the shipping clerk position required a full release. On March 22, 2012, Dunlap's workers' compensation claim representative confirmed to Dunlap that her light duty restriction was permanent.

On April 27, 2012, Dunlap presented Liberty with her Preferred Worker Card.³ Later that day, Liberty terminated Dunlap. Liberty states that the decision to terminate Dunlap was made on April 26, 2012, before receiving her Preferred Worker Card, and that Dunlap's manager signed and dated Dunlap's letter of termination on April 26, 2012. On May 4, 2012, Dunlap requested reinstatement or reemployment, arguing that she was "medically stationary." Dunlap did not suggest or request any accommodations for the shipping clerk position. Libertyresponded to Dunlap's letter on May 5, 2012, explaining that Liberty could not reinstate Dunlap into the shipping clerk position unless a physician released her to regular work. Liberty invited Dunlap to provide medical certification demonstrating such a release, or to identify any available positions at Liberty for which Dunlap believed she would be suitable. Dunlap did not respond.

On May 14, 2012, Dunlap filed a complaint with BOLI and EEOC complaining of disability discrimination and other violations of Oregon laws. After an investigation, BOLI issued a letter of dismissal on June 26, 2012, for lack of sufficient evidence.

In the summer and fall of 2012, Dunlap applied to a variety of jobs at Liberty in response to several job postings on Craigslist, a classified advertisement website. In August of 2012, Dunlap applied for a customer service job, production assistant job, and shipping clerk job. Liberty alleges it did not consider Dunlap for any of these positions because of her physical restrictions and because of her inadequate performance in the customer service position. Dunlap filed this lawsuit against Liberty on September 11, 2012.

In November of 2012, Dunlap applied for two new job openings posted by Liberty on Craigslist—a shipping clerk job and a customer service job. Liberty continued to maintain that Dunlap was not qualified for these two positions, but Liberty had been considering adding a new position, a Multi Department Assistant Flex Position ("Multi Flex"), and Liberty offered to interview Dunlap for this new position. Dunlap failed to show up for the scheduled interview; nonetheless, Liberty offered Dunlap the Multi Flex position on November 16, 2012. Dunlap rejected Liberty's offer of employment.

On December 13, 2012, Liberty made a second offer to reinstate Dunlap. This time, Liberty offered Dunlap either the Multi Flex position or a shipping clerk position; however the shipping clerk position offer was incumbent on Dunlap providing present medical information toshow that she had been released to regular employment by her physician. Dunlap again rejected the offers of employment. At this point, Dunlap's counsel provided Liberty with a note from Dunlap's physician explaining that despite the fact that Dunlap was taking "two mental health drugs," her anxiety prevented her from attending the November interview and accepting any job at Liberty.

STANDARDS

A party is entitled to summary judgment if the "movant shows that 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). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment," the "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient. . . . " Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks omitted).

DISCUSSION

A. Disability Discrimination (ADA and Or. Rev. Stat. § 659A.122)

Dunlap...