Shepard v. City of Portland

• Decision Date: 31 October 2011
• Docket Number: Civil No. 09–0021–AA.
• Citation: 829 F.Supp.2d 940
• Parties: Kelly SHEPARD, Plaintiff, v. The CITY OF PORTLAND, a municipal corporation, Suzanne Kahn and Randy Johnson, Defendants.
• Court: U.S. District Court — District of Oregon

829 F.Supp.2d 940

Kelly SHEPARD, Plaintiff,

v.The CITY OF PORTLAND, a municipal corporation, Suzanne Kahn and Randy Johnson, Defendants.

Civil No. 09–0021–AA.

United States District Court, D. Oregon.

Oct. 31, 2011.

Daniel Snyder, Carl Post, Erin McCool, Law offices of Daniel Snyder, Portland, OR, for Plaintiff.

Kari A. Furnanz, Kelly S. Riggs, Hoffman Hart & Wagner, LLP, Portland, OR, for Defendant.

OPINION AND ORDER

AIKEN, Chief Judge:

Defendants the City of Portland, Suzanne Kahn, and Randy Johnson each move for summary judgment on plaintiff Kelly Shepard's employment discrimination and retaliation claims. See Fed.R.Civ.P. 56. For the reasons set forth below, Suzanne Kahn's and Randy Johnson's motions are granted; the City of Portland's motion is granted in part and denied in part.

BACKGROUND

Defendant the City of Portland (the “City”) is a municipal corporation organized pursuant to state law. Defendants Suzanne Kahn (“Kahn”) and Randy Johnson (“Johnson”), as well as plaintiff, work for the City. Plaintiff was first hired in 1981. In May 2000, after years of continuous promotions, plaintiff was appointed to Senior Public Works Supervisor (“Senior Supervisor”) of the Portland Bureau of Transportation.

As Senior Supervisor, plaintiff reported to the Environmental Systems Division Manager (“Division Manager”). The Division Manager reported to the Maintenance Group Manager (“Group Manager”). At the time of plaintiff's promotion in 2000, Fred Burkhardt (“Burkhardt”) was the Division Manager and Sam Irving (“Irving”) was the Group Manager.

In the fall of 2003, plaintiff began to have disagreements and negative experiences with a number of his co-workers and supervisors, starting with incident in which a subordinate employee whom plaintiff was investigating for misconduct filed a harassment claim against him. In another instance, plaintiff made comment at during a discussion of the City's diversity survey that some employees viewed as racist.

In February 2005, plaintiff started experiencing serious memory loss and was ultimately diagnosed with generalized anxiety disorder.

In July 2005, Mark Mitchell (“Mitchell”) was appointed as the new Division Manager when Burkhardt retired. Soon thereafter, Mitchell communicated to plaintiff that Irving identified plaintiff as a problem employee. In August of either 2005 or 2006 ¹, plaintiff offered an injured employee the opportunity to go on a ride-a-long to see if that employee felt comfortable with the job he was being offered. The Human Resources Coordinator told plaintiff that he “messed up,” and later reported the incident to Kahn. Irving later told plaintiff that Kahn had recommended discipline and laughed while saying, “[y]ou don't get it. We discipline you, we discharge you.”

In the spring of 2006, plaintiff took medical leave for surgery. In November 2006, Mitchell accepted another job and recommended that plaintiff be given the temporary appointment as Division Manager until the position could be permanently filled. Mitchell told plaintiff that Irving was angry at the suggestion and that Irving seemed to have some “deep seated issues with plaintiff of a very personal nature.” On November 28, 2006, Irving informed plaintiff that Michael Boyle (“Boyle”) was going to be temporarily promoted to Division Manager. Irving explained that one of the reasons that plaintiff was not being promoted was because he had missed too much work. Boyle had no previous experience with respect to sewer collection systems.

In late 2006 or early 2007, Irving and Boyle required plaintiff to set a formal “start time” for work. Boyle instructed, plaintiff to arrive no later than 6:30 a.m. so that he would be present when the first shift started, which is approximately half an hour earlier than plaintiff's regular start time, and to leave eight-hours later. Plaintiff had never previously been required to have a formal start time.

In a management meeting sometime prior to February 2007, plaintiff reported his concern that the Bureau was improperly overpaying premium pay to employees for non-premium work.

On February 16, 2007, plaintiff experienced severe anxiety. On February 20, 2007, plaintiff's physician removed him from work due to a “mental breakdown,” When plaintiff informed Boyle that he was taking medical leave, Boyle requested that plaintiff provide the password to his computer. On February 21, 2007, plaintiff filed a workers' compensation claim for his psychological condition. Also on February 21, 2007, plaintiff reported “racial, whistleblowing, and medical leave discrimination and harassment” to Kahn and Transportation Director Sue Keil (“Keil”). In April 2007, plaintiff also made a harassment claim against Boyle. Plaintiff was on medical leave for approximately three months.

In April 2007, Johnson was appointed as permanent Division Manager. On April 23, 2007, the City denied the compensability of plaintiff's worker compensation claim. While plaintiff was on leave, the City used plaintiff's password to search his computer. In addition, some of plaintiff's personal belongings had been removed from his desk and shelf, and piled instead on a cabinet and windowsill. Plaintiff reported this incident to Johnson, stating that it was “retaliation” for filing a workers' compensation claim.

On May 11, 2007, plaintiff returned from leave. Plaintiff's doctor recommended that he be allowed to return to work part-time. Johnson indicated that he was unsure if Kahn would find that transition acceptable, stating that Kahn preferred that plaintiff return to work full-time. Ultimately, plaintiff was permitted to return to work on a part-time basis.

In August 2007, Tony Bottger (“Bottger”) informed plaintiff that Johnson made derogatory comments about plaintiff to several managers and supervisors in a meeting that Bottger attended.

In October 2007, plaintiff received a performance evaluation from Johnson that was approved by Kahn. The performance evaluation rated plaintiff's overall performance as “effective.” On November 13, 2007, plaintiff sent a letter to Johnson, stating that he was dissatisfied with the evaluation because it was “negative in tone” and “contained false accusations.” In response to plaintiff's letter, Johnson and Kahn improved plaintiff's evaluation.

During January 2008, plaintiff had hearings on his workers' compensation claim. On June 14, 2008, an Administrative Law Judge reversed the City's denial of plaintiff's workers' compensation claim.

During the spring and summer of 2008, plaintiff continued to have disagreements and negative experiences in the workplace, especially with Kahn and Johnson. Most of these instances involved Kahn or Johnson correcting disciplinary actions that plaintiff had taken in regard to the employees plaintiff supervised. Pursuant to one of these inter-workplace conflicts, an employee filed a complaint against plaintiff for bullying. The City hired an outside agent to investigate these allegations.

On December 26, 2008, Johnson informed plaintiff that the complaint against him could not be substantiated, but the investigation revealed that plaintiff was too direct in his management style. As a result, plaintiff was required to meet with a management consultant. On December 28, 2008, Johnson issued plaintiff an oral warning for work rule violations. Sometime in 2009, the City hired an additional Senior Supervisor, K.W. K.W. was responsible for supervising approximately half of plaintiff's employees.

From October 27, 2009 to November 30, 2009, plaintiff took medical leave for a knee surgery. On December 4, 2009, Johnson issued plaintiff a “Written Reprimand” for events that occurred while he was out on leave. In January 2010, Johnson began requiring plaintiff to compose a weekly report of his daily activities. No other employee was required to create a weekly report. Plaintiff never complied with this requirement and Johnson ultimately waived it.

On June 22, 2010, Dawn Jansen (“Jansen”), the Human Resources Site Team Manager, contacted plaintiff and inquired whether he needed any accommodations for his disability. At that time, plaintiff did not request any accommodations. On June 23, 2010, Jansen again contacted plaintiff and asked that he fill out a formal “Job Accommodation Request Form.” On July 2, 2010, plaintiff submitted his “Job Accommodation Request Form,” in which he alleged limitations due to memory loss and insomnia. In regard to accommodations, plaintiff requested: reminders for meetings, assistance in keeping task lists current, and not to be “reprimanded for being late for work due to lack of sleep.” This was the first time that plaintiff made a formal claim of disability or requested accommodations.

Jansen and plaintiff remained in contact over the next few months regarding accommodations. On September 23, 2010, Jansen and plaintiff met to discuss plaintiff's limitations associated with his memory loss and anxiety. On September 27, 2010, Jansen proposed a list of tasks to help accommodate plaintiff's disability, including creating and printing out a calendar that detailed each days events. Plaintiff rejected this plan and asked to “start over again on the interactive process.” As of June 3, 2011, no additional accommodations have been discussed.

Between October 8, 2007 and August 27, 2008, plaintiff filed three BOLI complaints, asserting claims for violations of the Oregon Family Leave Act (“OFLA”), injured worker discrimination, and whistleblower retaliation. In each instance, BOLI issued a “right to sue” letter.

Between July 5, 2007 and December 15, 2009, plaintiff sent several torts claims notices to the City, communicating his intent to assert claims for violations of the OFLA, workers' compensation discrimination, retaliation for filing an employment discrimination charge, and whistleblowing retaliation against the City, Kann, Johnson, and Boyle.

On January 6, 2009, plaintiff filed his original complaint in this...