Flug v. University of Oregon

• Court: Oregon Court of Appeals
• Writing for the Court: ARMSTRONG, J.
• Citation: Flug v. University of Oregon, 170 Or.App. 660, 13 P.3d 544 (Or. App. 2000)
• Decision Date: 01 November 2000
• Parties: Deborah J. FLUG, Appellant, v. UNIVERSITY OF OREGON, Respondent.

13 P.3d 544

170 Or. App. 660

Deborah J. FLUG, Appellant, v. UNIVERSITY OF OREGON, Respondent.

(16-96-04247; CA A99397).

Court of Appeals of Oregon.

Argued and Submitted January 20, 1999.

Decided November 1, 2000.

David C. Force, Eugene, argued the cause and filed the briefs for appellant.

Jas. Adams, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER,¹ Judges.

ARMSTRONG, J.

Plaintiff brought this action for unlawful employment practices and intentional infliction of emotional distress (IIED). Plaintiff claimed that defendant violated ORS 659.425 by

"discriminating against Plaintiff in the terms, conditions, or privileges of employment * * * because she has a mental impairment which, with reasonable accommodation by the employer, would not prevent the performance of work for Defendant; and/or because Plaintiff has a record of such impairment; and/or because Defendant regards Plaintiff as having a mental impairment."²

Plaintiff also claimed that defendant retaliated against her for her opposition to defendant's unlawful employment practices, thereby violating ORS 659.030(1)(f).³ Finally, plaintiff claimed that two of defendant's employees intentionally caused her to suffer extreme emotional distress. Defendant moved for summary judgment, contending, inter alia, that plaintiff had failed to give timely notice of her IIED claim as required by ORS 30.275.⁴ The trial court granted defendant's motion and entered judgment for defendant. We affirm.

Because the trial court decided this case by summary judgment, we view the evidence and all reasonable inferences that may be drawn from that evidence in the light most favorable to the party opposing the motion— in this case, plaintiff. ORCP 47 C;⁵ Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997). Plaintiff began working for defendant in 1984 in the University's Housing Department and eventually was promoted to Resident Services Supervisor, a position in which she had supervisory responsibilities. In 1994, plaintiff was diagnosed as suffering from depression and, beginning in August 1994, took leave from work in order to recover. Plaintiff returned to work in November 1994, although, on her doctors' orders, she worked on a restricted schedule. As of March 1995, plaintiff was still working on a restricted schedule.

In early April 1995, in the course of conversations with a co-worker, plaintiff commented that she understood the emotions of postal workers. Plaintiff's comment was apparently in reference to reported instances of postal employees who had committed acts of violence in the workplace. Plaintiff told her co-worker that she would never do anything like that, however, because she was not homicidal. In other conversations, plaintiff had told co-workers about her target shooting experiences and how, at one point, she was able to shoot pine cones out of a tree. Plaintiff's co-workers reported these conversations, along with other concerns about plaintiff's work, to plaintiff's supervisors. In response, Mike Eyster, the Director of University Housing, and Ron Tendick, plaintiff's direct supervisor, met with plaintiff on May 10, 1995. At that meeting, Eyster and Tendick presented plaintiff with a memorandum outlining what they considered to be plaintiff's options. The memorandum detailed a number of conditions that plaintiff was required to meet in order to continue her employment. The first condition was that plaintiff provide defendant with a "[f]ull release from counselor and doctor to return full time and ability to perform all job functions."

Plaintiff understood from the memorandum that she would be fired unless she immediately presented Eyster and Tendick with releases from her doctors to resume full-time work with no restrictions or accommodations to her illness or recovery process. Plaintiff told Eyster and Tendick that she could not fulfill their demand because her doctors had not yet released her to work full time, but they repeated their request for such a release. Plaintiff asked them whether they were ordering her to ask her doctors to lie about their medical opinions, but they did not respond. At the time of the meeting, Tendick had received letters from plaintiff's doctors stating that they were releasing plaintiff to work six hours per day beginning May 10, 1995, seven hours per day beginning May 22, 1995, and eight hours per day (full time) beginning June 1, 1995. It is not clear from the record that plaintiff was aware of those letters.⁶ Plaintiff was upset and hurt by her supervisors' comments and attitude and by the contents of the memorandum.

After the meeting, plaintiff contacted an attorney. On May 15, 1995, plaintiff wrote to Tendick stating that, with certain modifications of the stated conditions, plaintiff's return to work could be accomplished.⁷ The letter went on to state that, although most of the return-to-work conditions were reasonable or within the University's right, the requirement of a full release to work without accommodations appeared to violate federal and state laws prohibiting discrimination against disabled employees. Plaintiff suggested a meeting in which her attorney and plaintiff's supervisors could "iron out" the concerns expressed in the letter. Having received no response to that letter, plaintiff again wrote Tendick on May 30, 1995, asking for a reply. On June 15, 1995, Peter Swan, Assistant to the President for Legal Affairs at the University, responded and listed defendant's criteria for plaintiff's return to work, again stating defendant's need for a release from plaintiff's doctor clearing plaintiff to work full time. As stated by Swan, the doctors' clearance should include a determination that plaintiff

"is not a disabled person or that she is a disabled person who is not a threat to others and needs no accommodation, or that she is a disabled person who is not a threat to others and who can be accommodated without altering the essential functions of her job * * *."

On June 23, 1995, plaintiff replied, again voicing concerns that some of the conditions for plaintiff's return to work were unreasonable.⁸ On July 20, 1995, Swan responded that defendant needed the releases from plaintiff's doctors before August 2, 1995, or it would be forced to replace plaintiff.

In a letter dated September 18, 1995, plaintiff enclosed letters from plaintiff's doctors releasing her to work full time, but not in the Housing Department. Plaintiff's letter stated:

"Given the fact that Dr. Cordes believes that Ms. Flug can return to work full-time so long as certain stressors can be eliminated, it is our position that Ms. Flug is able to return to work so long as the University can accommodate her illness by transferring her to another department.

"* * * * *

"Dr. McPherson believes that returning Ms. Flug to her job in the Housing Department is contraindicated in light of Ms. Flug's severe depression. On the other hand, both Dr. McPherson and Dr. Co[r]des are of the opinion that it is important to Ms. Flug's treatment and recovery that she return to work. Given the size and breadth of the University's staff, it is our position that the University can accommodate the restriction prescribed by Dr. Cordes and Dr. McPherson by transferring Ms. Flug to another department.

"Please consider this our formal request that the University accommodate Ms. Flug's illness by offering her suitable work in another department."

(Emphasis added.) Plaintiff sent another letter on December 18, 1995, complaining that she had not yet received word from defendant regarding its willingness to make accommodations in her employment and stating that she had hoped to "reach an amicable resolution" without having to resort to litigation. Defendant responded on December 29, 1995, stating that, because it had not received the doctors' clearances by August 2, 1995, it had restructured the Housing Department to eliminate plaintiff's position. Defendant further stated that it believed that plaintiff was neither a disabled person nor an injured worker. Defendant suggested that plaintiff contact the University Employment Manager "in an effort to identify any forthcoming openings in her salary range which might interest her and for which her skills and training * * * would be appropriate." Defendant went on to state that if no such position were found, it eventually would need to remove plaintiff from Management Service.

Plaintiff's attorney responded by letter to Swan on January 29, 1996, writing:

"I regret that we have been unable to amicably resolve the University of Oregon's continual and repeated violations of Ms. Flug's rights as a disabled person under ORS 659.425 and 42 USC § 12102. We have provided you, as legal counsel for the University, with actual and continual notice of Ms. Flug's claim and of her desire that the University make reasonable accommodations for her disability.

"Certainly, as our prior correspondence makes clear, Ms. Flug is a disabled person. As you are aware, Ms. Flug suffers from a psychological disorder, which, at a minimum, substantially limits her ability to communicate and socialize. As Ms. Flug's employer, the University of Oregon has been requested to reasonably accommodate her disability by transferring her to another department. However, the University has refused to provide this reasonable accommodation which would enable her to perform her job.

"Therefore, in order to redress the University's unlawful discrimination, Ms. Flug reserves the right to file suit against the University for its discrimination against her as a disabled person in employment, in violation of ORS 659.425 and 42 USC § 12102. In the event we file such an action we will seek compensatory damages, back pay, reasonable attorney fees, an order of reinstatement,

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