Scott v. Sears, Roebuck and Co.
| Decision Date | 17 October 2005 |
| Docket Number | No. CV 04-1186-AS.,CV 04-1186-AS. |
| Citation | 395 F.Supp.2d 961 |
| Parties | Ray W. SCOTT and Cathie M. Scott, Plaintiffs, v. SEARS, ROEBUCK AND CO., a foreign business corporation, Defendant. |
| Court | U.S. District Court — District of Oregon |
Michael D. Callahan, Sharon C. Stevens, Callahan & Stevens, Keizer, OR, for Plaintiffs.
Douglas R. Andres, Seth H. Row, Bullivant Houser Bailey, PC, Portland, OR, for Defendant.
Plaintiff Ray Scott ("Scott") alleges that his employer, defendant Sears, Roebuck and Co. ("Defendant"), discriminated against him because of his age in violation of the federal Age Discrimination in Employment Act of 1967 (29 U.S.C. §§ 621-634 et seq.)(the "ADEA"), as well as the comparable state statute, and ultimately terminated him for complaining about such discrimination and applying for workers' compensation benefits. He also alleges claims for common-law wrongful discharge and intentional infliction of emotional distress. Scott's wife, Cathie, asserts a claim for loss of consortium. Defendant moves for summary judgment on all claims.
Scott was hired by Defendant in 1973 as an automotive technician in its Automotive Center in Salem, Oregon. Over the next few years, Scott attended training classes, became a Tech III, and was qualified to perform all of the duties of a Tech III, which included front and rear brake repair and alignments. Defendant's automotive technicians were paid a base rate and received additional compensation for work performed, with Tech III work generating more compensation than Tech I or Tech II work.
In the summer of 2002, Defendant moved its Salem Automotive Center to a new location. Defendant anticipated that the new location would significantly increase automotive service sales. Concurrent with the move, Defendant adopted new policies and procedures, with greater emphasis on employees meeting production standards. For automotive employees, one of these productivity standards was "Sales Per Hour" ("SPH"). Duley Aff. at 2.
Damian Desmond1 became the manager of the Salem Automotive Center in September 2002 and became Scott's manager. Over the next year, Desmond criticized Scott's performance and ability to communicate appropriately with others, disciplined Scott for various issues, assigned him menial tasks generating less compensation and, eventually, recommended Scott's termination. Scott alleges that Desmond's actions were based on Plaintiff's age and Desmond's desire to terminate older employees.
On September 24, 2003, Scott asked Desmond for the form required to initiate a workers' compensation claim. When asked if he had been physically injured in the shop, Scott replied in the negative. Desmond then asked why Scott needed a claim form and Scott refused to answer. Desmond made an appointment for Scott to meet with Susan Duley, the store manager. Andy Antonson, of Defendant's loss prevention department, was also present for the meeting. Duley asked Scott how he had been injured. Scott stated that he felt he had been "damaged" since he was let go in December 2002.2 Scott was given the form and the meeting ended. Both Desmond and Duley explained to Scott that they needed to know if and how he got hurt to prevent similar injuries to other employees.
On October 1, 2003, Scott filed a workers' compensation claim ("Claim") against Defendant alleging that he was suffering from a mental disorder caused by the ongoing harassment by Desmond. Scott was terminated on October 13, 2003.
The Claim was denied by Defendant's insurer. A three-day hearing was then held before John Howell, Administrative Law Judge for Oregon's Workers' Compensation Board ("ALJ"). Scott was represented at the hearing by legal counsel. No less than five witnesses testified and documentary evidence was presented.
The primary issue before the ALJ was whether Scott's mental disorder was compensable under Oregon's workers' compensation statutes. Under the statutes, "the worker must prove that employment conditions were the major contributing cause of the disease." O.R.S. 656.802(2)(a). If the claim is based on a a mental disorder, the claimant must establish that:
(a) The employment conditions producing the mental disorder exist in a real and objective sense.
(b) The employment conditions producing the mental disorder are conditions other than conditions generally inherent in every working situation or reasonable disciplinary, corrective or job performance evaluation actions by the employer, or cessation of employment or employment decisions attendant upon ordinary business or financial cycles.
(c) There is a diagnosis of a mental or emotional disorder which is generally recognized in the medical or psychological community.
(d) There is clear and convincing evidence that the mental disorder arose out of and in the course of employment.
O.R.S. 656.802(3).
On October 25, 2004, the ALJ found that Scott suffered from a diagnosed recognizable mental disorder and that the mental disorder arose from stress associated with his employment. However, the ALJ denied the Claim based on his finding that the employment conditions primarily responsible for Scott's mental disorder were reasonable disciplinary, corrective or job performance actions by the employer. Specifically, the ALJ evaluated the evidence as follows:
The event that claimant points to as first contributing to his mental disorder, and the event which convinced him that much of what when on thereafter was harassment aimed at getting rid of him, was the disciplinary action taken against him in October 2002.
This record establishes that claimant and his assistant manager knowingly violated an employment policy prohibiting an employee from working on his own vehicle. Claimant admitted as much to his wife. Sears disciplined claimant and the assistant manager equally. The discipline was less than the maximum provided for in such a situation. Investigation of the incident and the determination of the appropriate discipline were made by Sears personnel other than Desmond.
I conclude that claimant has failed to establish that the discipline he received in October 2002 was unreasonable. The contribution to the cause of claimant's mental disorder by that disciplinary action may not be considered as contributory for purposes of this claim.
The evidentiary record in this case establishes that claimant had some recurring problems with communications and interpersonal relations. Those problems were not limited to interactions between claimant and Desmond. Claimant had similar problems with two previous supervisors, with the District Manager, with coworkers and with customers.
As a result of claimant's problem interacting with others, he was "coached" and then given a PPI [Performance Plan for Improvement]. Claimant asserts that he was given a PPI in December 2002 to allow Sears to lay him off later that month. Although claimant appears quite convinced of that, he has little more than his own belief to establish that the PPI was anything other than a reasonable corrective action.
I conclude that the coaching and the PPI given to claimant through December 2002 were given to correct a real and recurrent deficiency in claimant's interactions with customers and other Sears employees. Claimant has failed to prove that the coaching or the PPI were not reasonable corrective actions. Therefore, to the extent that they contributed to his mental disorder, claimant's receipt of coaching concerning interpersonal skills and the December 2002 PPI may not be considered as employment-related causes. O.R.S. 656.802(3)(b).
The only evidence in this record is that the layoffs made by Sears at its Salem Auto Center in December 2002, including claimant's, were made based upon ordinary business or financial cycles. That is, reduced sales and service in the winter and unrealized increases anticipated from the move to a new location, left Sears overstaffed in certain positions.
The selection of claimant as the Tech III to be laid off was made pursuant to an established lay-off procedure. Claimant does not assert otherwise.
I conclude that the causal contribution to claimant's mental disorder resulting from his layoff may not be considered in determining the compensability of his claimed mental disorder. O.R.S. 656.802(3)(b).
Claimant alleges additional employment-related contributions to his mental disorder in 2003, including specific incidents and a pattern of discrimination through assignment of lesser paying jobs. The latter assertion is not supported by claimant's claim that he suffered at least $100 a week reduction in income, nor by the fact that he performed lower paying battery jobs three to five times a day.
In any case, it is unnecessary to further examine the nature of claimant's various stressors. When his October 2002 final written warning, his December 2002 PPI and his December 2002 layoff are removed from consideration, it is clear that the evidence, medical and otherwise, does not support the conclusion that other stressors which might be considered constituted the major contributing cause of his mental disorder. Claimant has failed to prove that his claimed mental disorder is an occupation disease.
Lee Aff., Exh. B. Scott requested a review of the ALJ's decision by the Workers' Compensation Board. That review is still pending.
Defendant moves to strike designated portions of the affidavits of Ray Scott and Mario Tavera and numerous exhibits attached to the affidavit of Michael Callahan. With regard to Ray Scott and one sentence of Mario Tavera, Defendant argues that the objectionable portions seek to relitigate facts adjudicated in the workers' compensation hearing. Based on the court's ruling on issue preclusion discussed below, Defendant's...
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