Hardie v. Legacy Health System

• Decision Date: 24 May 2000
• Citation: 167 Or. App. 425,6 P.3d 531
• Parties: Dorothy HARDIE, Appellant, v. LEGACY HEALTH SYSTEM, Respondent.
• Court: Oregon Court of Appeals

6 P.3d 531

167 Or. App. 425

Dorothy HARDIE, Appellant, v. LEGACY HEALTH SYSTEM, Respondent.

(9610-07813; CA A99826)

Court of Appeals of Oregon.

Argued and Submitted October 21, 1998.

Decided May 24, 2000.

Jennifer Lanfranco argued the cause for appellant. On the briefs were Richard C. Busse, Scott N. Hunt, and Busse & Hunt.

Charles F. Hinkle argued the cause for respondent. With him on the brief were Christine Kitchel, David E. Van't Hof, and Stoel Rives LLP.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge,¹ and WOLLHEIM, Judge.

WOLLHEIM, J.

Plaintiff commenced this action for damages against defendant, her former employer, alleging claims for retaliatory discrimination, ORS 659.410 (1995),² discrimination based on disability and perceived disability, ORS 659.425, and defamation, all arising out of defendant's treatment of plaintiff and ultimate termination of plaintiff's employment. The trial court granted defendant's motion for summary judgment, ORCP 47 C, and entered a judgment of dismissal on each claim. Plaintiff appeals and argues that there are genuine issues of material fact. We reverse and remand the judgment for defendant on the claim for retaliatory discrimination only. We otherwise affirm.

Viewing the evidence in the light most favorable to plaintiff, we review to ascertain whether defendant has shown that there are no genuine issues of material fact and that defendant is entitled to judgment as a matter of law. ORCP 47 C;³Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997); Quillen v. Roseburg Forest Products, Inc., 159 Or.App. 6, 9, 976 P.2d 91 (1999). Here, defendant bears the burden of showing the absence of any triable issues. Jones, 325 Or. at 420,939 P.2d 608. Indeed, where a plaintiff has established a prima facie case for recovery and a defendant has "identified a factual question on which [the] plaintiff would have the burden at trial, [the] defendant[ ] cannot prevail on summary judgment." Id. Defendant must show that "no objectively reasonable juror could return a verdict" for plaintiff. Id. at 412, 939 P.2d 608.

Because plaintiff's case rests primarily on inferences, rather than on direct evidence, we discuss the evidence in some detail. The evidence most favorable to plaintiff establishes that she was an employee of defendant, Legacy Health System, and its predecessor from 1988 until late April 1996, when defendant discharged plaintiff. Until December 1995, plaintiff received generally positive work performance reviews in her positions in the accounts payable and purchasing departments. However, plaintiff admitted that some of those reviews noted inconsistency in her work performance and morale. In October 1995, Lisa Davis became plaintiff's supervisor in the purchasing department. At that time, plaintiff held the position of "Capital Buyer" with the corporate office.

In mid-December 1995, plaintiff and Davis had a work-related disagreement, in which Davis noted plaintiff's "insubordination" toward Davis. Several days later, Davis conducted her first performance review of plaintiff and made a preliminary determination that plaintiff's performance was "unacceptable." Davis noted plaintiff's frequent absences due to illness, her frequent tardiness and smoke breaks, and her chronic backlog of work. Davis concluded that she was unable, at that time, to complete the review and informed plaintiff that she would complete it at a later time after further observation. From the beginning of January until plaintiff called in sick on the 23rd, plaintiff was late to work every day that she reported for work.⁴

On January 24, 1996, plaintiff left a voice mail message for Davis indicating that plaintiff would be absent for an "indeterminate period of time" due to stress. Davis learned from Dennis Phister, her supervisor in the human resources department, that plaintiff planned to file a workers' compensation claim for emotional problems and stress and that plaintiff had arranged for her personal belongings to be picked up by a friend. Davis stated that January 24 was the first day that she learned of plaintiff's emotional distress. Davis and Phister met that day regarding plaintiff. In Davis's notes from that meeting, she wrote "Termination Plan" at the top of the page. Further down the page, she specifically mentioned plaintiff's "Workers' Compensation/Stress" claim and resolved to "post job immediately" as well as to "be ready for her if/when she does return." Other notes drafted by Davis concerning plaintiff also chronicled plaintiff's work deficiencies and noted her frequent absences due to illnesses. On January 29, 1996, Davis wrote a note to the file concerning plaintiff. In that note, Davis recorded her observations that plaintiff was often sick. She also noted that:

"When [plaintiff] called in sick with another migraine on 1/23/96, it was not a surprise. * * *

"[Plaintiff] appears to have things in her personal life which are causing her to be unable to perform her work, and she needs to get treatment and find resolution. I support whatever services Legacy makes available to its employees at times such as this in an individual's life.

"* * * * *

"Should [plaintiff] recuperate from her stress and wish to return at Legacy, it is my understanding that the organization is obliged to find a position for her which is amenable to her prognosis for coping and performance at that time. There is not any anticipated diminishment of stress in the Purchasing Department over the coming year, inasmuch as we have taken on substantial additional commitment of work in support of the organization."

On January 31, 1996, plaintiff filed her workers' compensation claim for panic attacks and stress, originating from her negative performance review with Davis. Davis stated that that was the first time that she learned that plaintiff suffered from panic attacks. Plaintiff also stated that she suffered from agoraphobia.⁵ Dr. Goranson, a psychiatrist, evaluated plaintiff in March 1996. Goranson diagnosed plaintiff with "adjustment disorder with mixed emotional features now mostly resolved," and concluded:

"I don't think that there will be any permanent impairment related to her current psychiatric condition (which I think is work related only in the sense of it being related to reasonable disciplinary action). With respect to the question whether she is able to return to work, I would think she could return to work, from a psychiatric standpoint. Given her feelings about that particular workplace, it is doubtful that such a situation would work out to anyone's satisfaction."

Plaintiff remained on leave with time loss pay until March, when Legacy offered plaintiff a "light duty" position at another facility. Plaintiff was offered the same rate of pay for operating a photocopier machine 40 hours a week. After a day and a half of work, plaintiff left that position because she experienced panic attacks. Plaintiff requested that she be transferred back to her original facility in the purchasing department. No action was taken on that request.

In early April 1996, Davis received an inquiry from a Legacy accountant regarding a questionable purchase originating from Davis's department. Davis retrieved the purchase order and discovered that plaintiff had authorized an employee purchase of a microwave for herself in October 1995 and that plaintiff had yet to pay for the microwave. Davis then wrote to Phister about her "serious concern" that plaintiff "abused her position as a Buyer for personal gain, and did so without authorization or knowledge of anyone in the department." She also explained that plaintiff "did not pay * * * for the item, allowing [defendant] to pay the vendor for it. [Plaintiff] had ample opportunity to make payment for this purchase, if she was to make a legitimate transaction, but she did not."

Defendant had a policy to be fair to employees and to withhold judgment until an investigation of wrongdoing is completed. On April 17, 1996, Phister and Davis met with plaintiff about the purchase. No written policy existed for employee purchases. It appears those purchases were allowed, and plaintiff believed she followed most of the normal procedures for making such a purchase. Plaintiff, however, admitted that a supervisor, not the employee purchaser, was supposed to authorize the purchase and that buyers were supposed to avoid even the appearance of impropriety. At the meeting, plaintiff told Phister and Davis that she had authorized the purchase and had paid for it. However, when she returned home, she discovered that she had not paid for the item.⁶ The next day she sent a check and a note of apology, recognizing her "serious error" and that she thought she had paid for the item. Plaintiff stated that she viewed the matter "as serious an issue as [Phister and Davis] obviously * * * did."

Davis recommended to Phister that plaintiff's employment be terminated because of the employee purchase. On April 23, 1996, Phister terminated plaintiff's employment. In the termination letter, Phister cited only plaintiff's unauthorized employee purchase of the microwave as the reason for discharge. He noted that, because plaintiff was an "experienced Buyer," she knew the purchasing process from start to finish and was familiar with the need for prior approval of employee purchases. Thus, her failure to obtain approval and to pay for the item until five months after receiving the item represented "poor judgment" and constituted cause for termination.

At some date after plaintiff's discharge, an employee of defendant told a third party, Maggie Brister, that plaintiff purchased an appliance through defendant "without paying for it." That statement was made in the context of plaintiff's discharge. Two months after her discharge, plaintiff accepted employment with a different employer as an accounts payable clerk. At the time of the motion for summary judgment, plaintiff worked as...