Vasnaik v. Providence Health & Services-Oregon, an Or. Corp., 3:14-cv-00027-HZ

• Decision Date: 09 May 2015
• Docket Number: No. 3:14-cv-00027-HZ,3:14-cv-00027-HZ
• Parties: PATRICK VASNAIK, Plaintiff, v. PROVIDENCE HEALTH & SERVICES-OREGON, an Oregon corporation, d.b.a. ST. VINCENT MEDICAL CENTER, Defendant.
• Court: U.S. District Court — District of Oregon

PATRICK VASNAIK, Plaintiff, v. PROVIDENCE HEALTH & SERVICES-OREGON, an Oregon corporation, d.b.a.ST. VINCENT MEDICAL CENTER, Defendant.

No. 3:14-cv-00027-HZ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

May 9, 2015

OPINION & ORDER

Thomas K. Doyle

Bennett Hartman Morris & Kaplan, LLP

210 S.W. Morrison Street

Suite 500

Portland, OR 97204

Attorney for Plaintiff

Janine C. Blatt

Jeffrey J. Druckman

Druckman & Blatt, PC

0424 S.W. Iowa Street

Portland, OR 97239

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Patrick Vasnaik brings this employment discrimination action against his former employer, Defendant Providence Health Services, d.b.a. St. Vincent's Medical Center ("Providence"). Mr. Vasnaik claims Providence subjected him to heightened and unwarranted scrutiny because of his age and a series of work-related injuries. His complaint originally alleged race, national origin, age, disability, and injured worker discrimination; he voluntarily dismissed the race and national origin claims.

Currently before the Court is Providence's motion for summary judgment on his remaining claims. Providence asserts that Vasnaik's termination resulted from repeated policy violations, culminating in a written warning for three serious incidents and subsequent termination when he violated Providence parking rules he was charged with enforcing.

Vasnaik fails to establish a prima facie case for either age or disability discrimination, and Providence's motion for summary judgment on those claims is granted. He does, however, raise the possibility that Providence's reasons for terminating him could have been a pretext for discriminating against him because he invoked the workers' compensation system. Accordingly, Providence's motion for summary judgment on Vasnaik's ninth claim for relief is denied.

BACKGROUND

Vasnaik worked as a security officer for Providence from July, 2006 through his termination in September of 2012. Compl. ¶¶ 10, 19. He was born in October of 1945, and was sixty-six years old when was he was fired. Doyle Declaration ("Decl.") Ex. A, ECF No. 28-1, at 1; Compl. ¶ 30.

During his approximately six-year stint at Providence, Vasnaik received annual performance evaluations. Doyle Decl. Exs. H-L, ECF No. 28-8-28-12. His performance ratingsfluctuated generally between "meeting some expectations" (or "requiring improvement") and "exceeding expectations." Id. Of note, he exceeded expectations in the "Attendance and Punctuality" category several times." Doyle Decl. Ex. H, ECF No. 28-8, at 9; Ex. I, ECF No. 28-9, at 9; Ex. K, ECF No. 28-11, at 2.

In addition to the formal evaluations, Vasnaik received both positive and negative feedback on his performance. In July 2011, Allen Mullen, Manager of Providence's Department of Security Services, received a "packet of thanks" for Vasnaik and another security officer. Doyle Decl. Ex. N, ECF No. 28-14. Vasnaik earned a "Message of Thanks for the Support" from another department at Providence for participating in a training video regarding lost patient property. Doyle Decl. Exs. O-P, ECF Nos. 28-15-28-16.

Although he received high marks for attendance at his annual reviews, Vasnaik's supervisors occasionally coached him on attendance and punctuality. He was coached in March of 2010 about the need to arrive to work on time and be prepared to take over his assigned post at the start of his shift. Defendant's Motion for Summary Judgment ("Def. Mot.") Ex. 30, ECF No. 19-21. In May of 2010, Vasnaik received what Providence calls a "documented coaching" from his supervisor Steve Wilson after he accumulated two tardies and three absences in a rolling 12-month period, the maximum allowed under Providence policy. Vasnaik Deposition ("Depo."), ECF No. 19-1, at 32-35; Def. Mot. Ex. 13, ECF No. 19-11. He received a written warning in May 2011 in part because of a "No Show/No Call" earlier that month. Def. Mot. Ex. 30, ECF No. 19-21.

Vasnaik's supervisors also coached and counseled him for errors on the job and when he violated Providence's employee policies and procedures. For instance, one of his duties as a security officer was to record and secure items found on hospital property. Def. Mot. Ex. 8, ECFNo. 19-8, at 1. Vasnaik twice received a documented coaching for violating lost and found procedures: once in 2010 after he mistakenly took home a lost wallet he had placed in his pocket and forgot to log, and again in 2011 when he erroneously informed a woman her lost necklace was found, much to her disappointment. Vasnaik Depo., ECF No. 19-1, at 28-32, 36-38; Def. Mot. Exs. 10, 18, ECF No. 19-10, 19-18.

Another part of Vasnaik's job was to park patients' vehicles if the patient was taken into the hospital immediately because of his or her condition. Vasnaik Depo., ECF No. 19-1, at 40-41. In February 2011, Vasnaik parked a patient's vehicle in a designated disabled space without the required permit; the patient received a $300 ticket, and Vasnaik received a written coaching from Wilson. Id. at 40-44; Def. Mot. Ex. 19, ECF No. 19-14.

Vasnaik was also coached on (1) radio communications and emergency room standby procedures, Def. Mot. Ex. 3, ECF No. 19-3; (2) relieving other officers from their posts in a timely manner, Def. Mot. Ex. 4, ECF No. 19-4; (3) working with other departments, Def. Mot. Ex. 30, ECF No. 19-21, at 2; and (4) proper radio use and responding to radio calls, Vasnaik Depo., ECF No. 19-1, at 66-67; Def. Mot. Ex. 34, ECF No. 19-24.

One criticism of Vasnaik's work came up repeatedly in his annual evaluations and through other coachings: he struggled to properly prioritize security calls or respond to emergency situations with sufficient urgency. His 2009 annual review stated that Vasnaik "could use a little work in prioritizing calls he responds to . . . ." Doyle Decl. Ex. J, ECF No. 28-10, at 11. He was not answering officer calls when eating his lunch, and Wilson "had to again explain to him that we are subject to call at any time." Def. Mot. Ex. 1, ECF No. 19-2, at 6. Wilson completed Vasnaik's 2010 review in September of that year, and provided comments for several areas where Vasnaik's performance rated as "Requires Improvement":

• "Patrick needs to be a little more focused on the priority calls. He appears to have one speed in which he does everything and there are those occasions where we need to shift gears and pick up the pace. The safety of co-workers may depend on it." Def. Reply, Ex. 17, ECF No. 32-6, at 4.

• "He needs to speed up his pace on calls requiring a higher priority level . . . . Any stat officer assistance call takes priority followed closely by any emergency code call. The pace needs to be picked up and not casually walk to the call." Id. at 11.

• "When an officer calls for assistance, do not take your time getting there. You need to pick up your pace . . . . When responding to an officer assistance call, drop what you are doing and immediately respond . . . ." Id. at 14.

Criticism of Vasnaik's performance in this area continued in January of 2011: "Patrick responds to all situations at one casual pace. I explained to him the importance of picking up the pace for any emergency call . . . ." Def. Mot. Ex. 1, ECF No. 19-2 at 3. In 2012, Wilson "gave Patrick a handout to help him understand the important of relieving officers on time, and to help him try and understand how to prioritize some of the calls we receive. Id. at 1.

Two more serious incidents led to a written warning for Vasnaik in May of 2011. One of the "core" responsibilities of the security guards at Providence was to monitor so-called "stand by" patients—patients thought to be in immediate danger of harming themselves or others due to mental illness. Def. Mot. Ex. 24, ECF No. 19-16, at 2; Vasnaik Depo., ECF No. 19-1, at 46. The primary function of a security guard assigned to stand by duty is "remain vigilant in providing watch over the patient" to ensure he or she does not leave hospital grounds. Def. Mot. Ex. 24, ECF No. 19-16, at 2. On April 26, 2011, Vasnaik was assigned to guard a stand by patient, but a technician walked right past him and moved the patient without him noticing; he was using acomputer in the area and admits that he failed to maintain appropriate attention. Def. Mot. Ex. 29, ECF No. 19-20 at 1-4; Vasnaik Depo., ECF No. 19-1, at 57-58.

Shortly thereafter, Vasnaik again violated security procedures when he walked away from a marked patrol vehicle with the keys in the ignition and the engine running. Def. Mot. Ex. 29, ECF No. 19-20, at 1, 3; Vasnaik Depo., ECF No. 19-1, at 60.

Those incidents, along with Vasnaik's May 2011 "No Show/No Call" resulted in a written warning and a "Work Plan for Improvement" that included performance standards for attendance, vehicle usage, and prioritizing calls. Def. Mot. Ex. 30, ECF No. 19-21; Ex. 31, ECF No. 19-22. Vasnaik admitted that his conduct violated Providence policies, and that the written warning and work plan he received were reasonable. Vasnaik Depo, ECF No. 19-1, at 61-62; ECF No. 32-1, at 2.

Vasnaik's final violation of Providence policy resulted in his termination. On September 3, 2012, he parked his personal vehicle in the West Parking Structure, which is reserved for patients and visitors. Vasnaik Depo., ECF No. 19-1, at 72-73. Since it was Labor Day, the area was essentially empty. Id. at 76. It is against Providence's Parking Policy for staff to park in patient and visitor spaces, which includes portions of the West Parking Structure, at any time. Def. Mot. Ex. 41, ECF No. 19-29, at 4. When Mullen later interviewed him about the incident, Vasnaik stated he parked there because he was running late, though he later claimed to have done so because of an injured knee. Def. Mot. Ex. 44, ECF No. 19-29, at 1; Wilson Depo., ECF No. 28-22, at 8-9. There is an exception to the parking policy whereby employees with a temporary disability and the proper permit can park in any designated disabled parking space regardless of its...