Khamnayev v. Schnitzer Steel Indus.

• Docket Number: 3:22-cv-00391-AR
• Decision Date: 16 June 2023
• Parties: OKSANA KHAMNAYEV, Plaintiff, v. SCHNITZER STEEL INDUSTRIES, INC., a domestic business corporation, Defendant.
• Court: U.S. District Court — District of Oregon

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OKSANA KHAMNAYEV, Plaintiff, v. SCHNITZER STEEL INDUSTRIES, INC., a domestic business corporation, Defendant.

No. 3:22-cv-00391-AR

United States District Court, D. Oregon

June 16, 2023

FINDINGS AND RECOMMENDATION

JEFF ARMISTEAD UNITED STATES MAGISTRATE JUDGE

Plaintiff Oksana Khamnayev filed this action against her former employer, Schnitzer Steel Industries, Inc., asserting claims for disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and Oregon's statutory parallel, ORS § 659A.100 et seq. (Compl. ¶¶ 23-58, ECF No 1 (Claims 1-4).) Khamnayev also asserts claims for interference under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and Oregon's statutory parallel, the Oregon Family Leave Act (OFLA), ORS § 659A.150 et seq. (Id. ¶¶ 59-72 (Claims 5-6).) Khamnayev requests compensatory damages, equitable relief, liquidated damages attorney fees, and costs.

Schnitzer Steel moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss all of Khamnayev's disability discrimination claims with prejudice, arguing that she has not cognizably or plausibly alleged that she is “disabled” under federal and state law. (Def.'s Mot. Dismiss at 5-9, ECF No. 7). Schnitzer Steel also contends that Khamnayev's FMLA and OFLA claims should be dismissed because her allegations do not establish that it retaliated or discriminated against her for taking protected leave. (Id. at 9-12.)

As explained below, the court recommends denying Schnitzer Steel's motion to dismiss (ECF No. 7). Schnitzer Steel's argument that Khamnayev has not alleged a “cognizable” disability under the ADA and Oregon's disability discrimination statutes relies on stale case law, and Khamnayev's allegations plausibly establish disability discrimination for Claims 1-4. As to Claims 5 and 6, Khamnayev's complaint adequately establishes that her taking of protected leave was a “negative factor” in Schnitzer Steel's decision to terminate her.

BACKGROUND

The court construes as true the factual allegations of Khamnayev's complaint. Weston Fam. P'ship LLP v Twitter, Inc., 29 F.4th 611, 617 (9th Cir. 2022). Khamnayev was employed by Schnitzer Steel on March 15, 2013, and terminated from employment on November 1, 2019. (Compl. ¶ 10.) At the time of her termination, Khamnayev held the position of Senior Tax Manager in Schnitzer Steel's tax department. (Id.) At all relevant times, she performed her job satisfactorily. (Id. ¶ 12.)

Khamnayev has the severe physical condition of a herniated disc, which limits her ability to walk, sit, and stand. (Id. ¶ 13.) In May 2019, Khamnayev gave Schnitzer Steel a medical release from her doctor stating that she “should not work more than 40 hours a week” because of aggravation to her herniated disc. (Id. ¶¶ 14, 17.) Schnitzer Steel denied that request for accommodation, and Khamnayev worked more than 40 hours a week from around June 4 until September 25, 2019. (Id. ¶ 15.) During that period, she worked 23 days straight without a day off and averaged 60 to 80 working hours per week. (Id. ¶ 16.)

Khamnayev requested and was granted protected family medical leave from September 25 through October 6, 2019. (Id. ¶ 16.) Upon her return to work, Khamnayev submitted a second medical release from her doctor to Schnitzer Steel. (Id. ¶ 17.) The release stated that Khamnayev should not work more than 40 hours in a one-week period because she was at risk for aggravation of her herniated disc. The release also stated that Khamnayev “should remain on work restriction through [December 31, 2019] and will be reevaluated in December 2019.” Finally, it provided that “[Khamnayev's] medical condition is temporary, and [she] should be released to full duty contingent upon reevaluation 12/31/19.” (Id.) Khamnayev also requested vacation time from November 7, 2019, through November 17, 2019, to reduce the time that an accommodation was necessary. (Id. ¶ 18.)

After Khamnayev submitted that medical release, Schnitzer Steel requested that she submit an “essential functions plan,” which she completed. (Id. ¶ 18.) From early until late October 2019, Khamnayev worked at least 40 hours a week to finish outstanding projects that her supervisor, Dave Anthony, requested that she complete. (Id. ¶ 19.) During that time, Khamnayev's condition continued to worsen as a result of her working conditions.

On October 29, 2019, Anthony requested a list of Khamnayev's projects and their projected completion dates. (Id. ¶ 21.) That request was made in preparation for Khamnayev's termination. Later that day, Khamnayev met with Anthony and Kendra Creighton-the Human Resources Manager at Schnitzer Steel. Anthony informed Khamnayev that Schnitzer Steel refused to accommodate her request to work no more than 40 hours per week as a Senior Tax Manager. Instead, Schnitzer Steel offered to transfer Khamnayev to the positions of Safety Manager, Crane Operator, or Inventory Support in the Portland Recycling Department-all of which were demotions. Khamnayev was told that if she did not accept any of those positions, her employment would be terminated. Because the positions did not allow Khamnayev to use her skills as a Certified Public Accountant, she declined the proposed transfers. (Id. ¶¶ 21-22.) Schnitzer Steel terminated her on November 1, 2019. (Id. ¶ 22.)

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal, therefore, can be based on either the “lack of a cognizable legal theory” or the “absence of sufficient facts alleged under a cognizable legal theory.” Goldingay v. Progressive Cas. Ins. Co., 306 F.Supp.3d 1259, 1263 (D. Or. 2018) (citing Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (1988)). To survive a motion to dismiss under a cognizable legal theory, a complaint “must contain sufficient factual matter to state a facially plausible claim to relief.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true.”). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).

The complaint “may not simply recite the elements of a cause of action”; instead, it must contain “sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (emphasis added); Iqbal, 556 U.S. at 678 (Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”). In evaluating the sufficiency of a complaint, the court accepts as true all well-pleaded factual allegations and construes them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). The court need not, however, credit a plaintiff's legal conclusions that are couched as factual allegations. Iqbal, 556 U.S. at 678-79.

DISCUSSION

After she was terminated from her position as a Senior Tax Manager Khamnayev initiated this action on March 10, 2022, asserting that Schnitzer Steel discriminated against her on the basis of disability in violation of the ADA and Oregon law. In Claims 1 through 4, Khamnayev alleges that Schnitzer Steel violated the ADA and Oregon's parallel disability discrimination statute by failing to provide reasonable accommodation and by unlawfully discharging her on the basis of disability. (Compl. ¶¶ 23-58 (citing 42 U.S.C. § 12112(a), (5)(A) and ORS § 659A.112(1), 2(e)).) In Claims 5 and 6, she alleges that Schnitzer Steel discriminated against her in violation of the FMLA and OFLA because she applied for protected family medical leave. (Id. ¶¶ 59-72.) Schnitzer Steel moves under Rule 12(b)(6) to dismiss each of those claims for failure to state a claim. (Def.'s Mot. Dismiss at 1-2.)

A. Unlawful Discharge on the Basis of Disability (Claims 1 and 2)

In Claims 1 and 2, Khamnayev alleges that Schnitzer Steel discriminated against her on the basis of disability when it terminated her employment. (Compl. ¶¶ 23-41.) Both the ADA and Oregon law prohibit discrimination based on disability in hiring, compensation, discharge, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a); ORS § 659A.112(a). Because Oregon's antidiscrimination statutes are “construed to the extent possible in a manner that is consistent with any similar provision” of the ADA, the court will analyze Claims 1 and 2 together.^[1] See ORS § 659A.139(1) (directing that ORS §§ 659A.103 to 659A.144 be construed in lockstep with similar ADA provisions).

Schnitzer Steel argues that Claims 1 and 2 should be dismissed because Khamnayev does not allege a cognizable “disability” under the ADA and Oregon law and because she has not plausibly alleged disability discrimination under those statutes. The court addresses each argument below.

1. cognizable disability

“Disability” is a defined term under the ADA and Oregon law. See 42 U.S.C. § 12102(1); ORS § 695A.104. To establish “disability,” a plaintiff must adequately allege that she has...