Davis v. Tri-County Metropolitan Transportation District
Docket: Case No. 3:12-cv-0808-SI
Court: District Court, D. Oregon; September 8, 2014; Federal District Court
Debra Davis has filed ten claims against her employer, TriCounty Metropolitan Transportation District of Oregon (TriMet), alleging various violations of state and federal laws. These claims include: 1) failure to provide veteran’s preference in hiring; 2) discrimination and retaliation for a worker’s compensation claim; 3) failure to reemploy in a suitable position; 4) disability discrimination under Oregon law; 5) race discrimination; 6) disability discrimination under the Americans with Disabilities Act (ADA); 7) retaliation for engaging in protected ADA activity; 8) violations under the Family and Medical Leave Act (FMLA); 9) violations under the Oregon Family Leave Act (OFLA); and 10) wrongful discharge under Oregon common law.
TriMet has moved for summary judgment on all claims. The court granted this motion in part, dismissing Davis's claims related to failure to reemploy and wrongful discharge. However, the motion was largely denied concerning the other eight claims, with certain adverse actions and matters also being addressed in the court's decision.
Regarding the standards for summary judgment, a party is entitled to it if there is no genuine dispute of material fact. The moving party must demonstrate this absence of dispute, and the court will view evidence in favor of the non-moving party. If the non-moving party cannot show sufficient evidence to support their case, the moving party may be granted judgment as a matter of law.
TriMet, established under O.R.S. Chapter 267, is a mass transit district involved in a legal dispute with Davis, an African-American veteran who worked for TriMet from 1993 until her layoff in July 2009. Davis held various positions, culminating in her role as Assistant Manager, Field Operations before being laid off due to workforce reductions. After her layoff, she returned to her previous role as a Journeyman Mechanic and actively applied for several supervisory and managerial positions from May 2009 to March 2012, but was not hired.
Davis suffered an on-the-job injury on August 13, 2009, leading her to file a worker’s compensation claim. Initially released for modified duty, she worked in several light-duty roles offered by TriMet, but as her claim was closed on November 19, 2009, due to TriMet's assertion that her back issues stemmed from a pre-existing condition, they ceased offering her light-duty work. Davis appealed this decision, resulting in an Administrative Law Judge ruling that the denial was procedurally invalid. This ruling was subsequently affirmed by the Worker’s Compensation Board and the Oregon Court of Appeals.
In 2010 and 2012, Davis attempted to reopen her worker’s compensation claim based on new medical reports indicating her ongoing back issues were work-related, but her requests were denied. A later evaluation by Dr. Paul Puziss diagnosed her with multiple back conditions linked to the workplace injury, which TriMet denied when she requested acknowledgment of these conditions. Additionally, from November 2009 to February 2010, Davis sought accommodations for her medical restrictions, but TriMet delayed any discussions until after she had exhausted her leave options.
In March and April 2010, TriMet conducted an ergonomics assessment for Davis, fulfilling all recommended accommodations except for a specific tool purchase, which TriMet believed fell under an existing tool allowance in the labor agreement. On March 23, 2010, Davis resumed her role as a Journeyman Mechanic but continued to face physical restrictions due to a back injury, prompting her to request further ergonomic assessments and accommodations. Throughout this period, Davis utilized her sick, vacation, and protected leave, and took unpaid leave once her paid leave was depleted. TriMet documented her absences, citing violations of its attendance policy, and required her to meet with supervisors regarding her absenteeism. In June, July, and September 2012, TriMet issued escalating warnings for absenteeism. Fearing termination, Davis applied for permanent disability, which was granted on October 22, 2012, retroactive to March 12, 2012.
Davis asserts ten claims for relief against TriMet, which has moved for summary judgment on all claims. The first claim concerns veteran’s preference points under O.R.S. 408.225 et seq., alleging TriMet failed to apply these points properly. TriMet contends it was not a "public employer" under the statute until January 1, 2010, due to a statutory amendment, and that it applied veteran’s preference points correctly at one hiring stage thereafter. Davis counters that TriMet was a "public employer" prior to this amendment and argues the statute requires preference points to be applied at every stage of the hiring process. The court interprets the Veteran’s Preference Statute using Oregon statutory interpretation principles, focusing on the text, context, and legislative intent, and may consider legislative history if necessary. TriMet maintains that it was not obligated to provide veteran’s preference points until the statutory amendment took effect.
In 2007, the Veteran’s Preference Statute was amended to require public employers to provide veteran’s preference points for vacant civil service positions, regardless of whether a civil service examination was administered. A “public employer” is defined as the state or any of its agencies or political subdivisions. TriMet claims it is not a political subdivision, but fails to provide supporting authority. Oregon law defines mass transit districts, including TriMet, as public employers and political subdivisions for certain statutes, with courts affirming TriMet’s status as a political subdivision in various cases, including its ability to levy taxes. TriMet's admission during discovery acknowledged its status as a political subdivision from March 1, 2007, binding it to this acknowledgment. Consequently, TriMet's assertion that it was not a public employer under the Veteran’s Preference Statute is rejected. Furthermore, the statute applies to civil service positions without the requirement of a civil service examination. TriMet's argument that it does not have civil service positions due to the lack of examinations is also rejected, as the 2007 amendment broadened the definition of civil service positions. The lack of a statutory definition for “civil service position” prior to 2010 does not limit its interpretation as claimed by TriMet.
Civil service is defined as the totality of public servants employed by a government entity, excluding armed services personnel. TriMet qualifies as a political subdivision of Oregon and is recognized as a local government unit, meaning its employees are considered civil servants. The Veteran’s Preference Statute, amended in 2007, was designed to extend its applicability beyond roles requiring a civil service examination. The statute's definition of "civil service position" is broad, covering roles determined through merit-based competitive processes, regardless of whether they are labeled as civil service positions.
The court concluded that TriMet failed to prove its positions were not classified as civil service under this statute. Additionally, the statute specifies that veterans or disabled veterans are entitled to preference points at various stages of the hiring process. For initial application screenings, five points are added for veterans and ten for disabled veterans. Similarly, for application examinations that yield a score, preference points are added to the total score. In cases where the examination does not produce a score, special consideration must still be given to veterans and disabled veterans. TriMet contends that preference is only required at one stage of the hiring process, citing specific language in the statute that suggests limited application of the preference.
The Court rejects TriMet's interpretation of the statute that suggests veteran's preference need only be given at one stage of the hiring process based on the use of "or." Instead, "or" indicates that preference must be provided if any listed condition is satisfied, unlike "and," which would require all conditions to be met. The Court emphasizes that the conditions could be mutually exclusive and that the 2007 amendment was intended to broaden the statute's applicability beyond positions requiring a civil service test.
The Court clarifies that the term "successfully" in relation to completing initial screenings or examinations does not limit the preference to just one phase of hiring. Instead, preference points should be awarded if a candidate meets minimum qualifications to advance in the process. If a candidate does not qualify, they have not "successfully" applied, thus no preference points are warranted.
Further, the Court notes that the statute’s wording regarding "a preference" and "the preference" does not definitively limit preference to one stage throughout the hiring process. The statute describes how preference should be administered at multiple stages, suggesting that the Oregon legislature did not intend for employers to choose a single stage for preference application. Although the statute does not clearly mandate preference at every stage, an Oregon Administrative Rule from the Bureau of Labor and Industries explicitly states that veteran's preference points must be granted at each stage of the application process.
TriMet contends that the interpretation of the Veteran’s Preference Statute is flawed and inconsistent with its text. The court must assess whether the disputed statutory text falls under exact, inexact, or delegative terms, as defined by the Oregon Supreme Court. It concludes that the statute's language regarding preference is inexact, meaning it conveys a complete policy but lacks precise definitions. As such, the court is tasked with evaluating the Bureau of Labor and Industries' (BOLI) interpretation in Or. Admin. R. 839-006-0450 (2010) against legislative intent. While BOLI's interpretation is not automatically entitled to deference, the court acknowledges BOLI's expertise, granting the regulation a degree of assumptive validity.
The Veteran’s Preference Statute prohibits unlawful employment practices against veterans and allows them to file complaints with BOLI. The court finds that BOLI's interpretation aligns with the statute's text and legislative context, particularly in light of the 2007 amendment allowing veterans to utilize preference multiple times. TriMet argues that Or. Admin. R. 839-006-0450 is irrelevant to the positions Davis applied for, asserting that Or. Admin. R. 839-006-0455 (2009) should apply instead. This rule specifies the conditions under which a public employer must grant promotion preference to veterans employed in permanent civil service roles, including military leave conditions and qualifications for the promotional position.
The rule amended in 2012 mandates that public employers, including TriMet, provide a promotion preference as detailed in OAR 839-006-0450. TriMet's claim that the prior rule precluded Davis from receiving veteran's preference points is rejected due to ambiguity in defining "promotion," which could refer to promotional titles or salary increases as well as vacant positions considered promotions. The Veteran’s Preference Statute explicitly applies to vacant civil service positions, indicating that the rule cannot override this statute, particularly regarding existing employees like Davis. Although Davis served in the military prior to her employment at TriMet without taking leave, the interpretation that only those who took leave are entitled to veteran’s preference contradicts legislative intent and is dismissed. Historical regulations confirm that veterans are eligible for preference for applications made within 15 years of discharge, with no time limit for disabled veterans. The 2012 rule revision clarified that promotional applications are not treated differently under the Veteran’s Preference Statute. The Court interprets the statute to require preference during both initial screening and application examination phases and confirms its applicability to Davis's applied positions during the relevant period. Between June 20, 2007, and January 1, 2010, Davis claims she was denied veteran’s preference points for positions at TriMet, which the company admits but argues it was not considered a public employer under the statute before January 1, 2010. The Court determined that TriMet was indeed a public employer as defined prior to the amendment, and since it failed to award Davis her entitled veteran’s preference points before January 1, 2010, there remains a factual issue regarding whether she would have secured the positions had she received these points.
Davis applied for jobs after January 1, 2010, and TriMet acknowledged it was subject to the Veteran’s Preference Statute, claiming it correctly awarded ten veteran’s preference points to her application. However, the crux of the matter revolves around whether TriMet's hiring process consisted of one or two phases. TriMet asserts a single phase, while Davis contends it included an initial application screening and a subsequent “application examination” phase, which involved interviews.
The Court interprets the Veteran’s Preference Statute, noting that while subsection (l)(b) does not define “application examination,” subsection (l)(c) provides a broad definition that encompasses interviews and evaluations. Evidence indicates that TriMet’s initial screening assessed various factors, leading to a shortlist for interviews, which were also scored. Consequently, the Court concludes that TriMet employs a two-phase hiring process: an initial screening and an interview phase, with the latter qualifying as the “application examination.” While Davis received the requisite ten points during the initial screening, she did not receive additional points during the interview phase.
Regarding specific job applications, for two positions, the application of veteran’s preference points would not have elevated Davis to the top candidate. However, for the Assistant Manager, Field Operations position, her veteran’s preference points, combined with adjustments for attendance issues potentially linked to her disability, could have positioned her as the second-highest candidate. Since the highest scorer declined the role, a factual dispute arises over whether TriMet's failure to award veteran’s preference points prevented Davis from securing the position.
The Court also notes that even if Davis would not have secured a position due to TriMet's alleged statutory violations, she may still seek equitable relief and reasonable attorney’s fees for TriMet's failure to provide required preference points and to communicate the reasons for its hiring decisions, as mandated by O.R.S. 408.230(5).
TriMet's motion for summary judgment on Davis's claim under O.R.S. 408.230 is denied for positions applied for after June 2007. Davis alleges TriMet discriminated and retaliated against her for using the worker's compensation system by issuing disciplinary "time loss" letters and considering her missed work due to injury against her for promotions, violating O.R.S. 659A.040. This statute prohibits employment discrimination against workers who invoke worker's compensation benefits.
To establish a prima facie case under O.R.S. 659A.040, Davis must demonstrate: (1) she invoked the worker's compensation system, (2) TriMet discriminated or retaliated against her concerning her employment terms, and (3) this discrimination or retaliation was due to her invocation of the worker's compensation system. The parties agree the first element is met, but TriMet contests the second and third elements.
The court applies the McDonnell Douglas burden-shifting framework for evaluating retaliation claims. If Davis establishes a prima facie case, TriMet must then provide a legitimate, non-retaliatory reason for its actions. If TriMet does so, Davis must show that this reason is a pretext for discrimination.
Davis argues that the time loss letters and the denial of managerial promotions based on her attendance record satisfy the second element of her claim. TriMet counters that the time loss letters did not constitute adverse employment actions, as they did not alter her employment terms. While TriMet disputes the rationale for not hiring or promoting her, it does not contest that those actions occurred.
The parties are in disagreement regarding the requirement of an employment action under O.R.S. 659A.040. Specifically, they question whether such an action must affect the terms and conditions of employment or if it suffices for the action to merely deter a reasonable employee from exercising their rights under the statute. This debate reflects the distinction between "adverse employment action" in antidiscrimination versus antiretaliation contexts. The U.S. Supreme Court in *Burlington Northern Santa Fe Railway Co. v. White* clarified these concepts within Title VII of the Civil Rights Act of 1964.
The Court differentiated the antidiscrimination provision, which is limited to actions affecting employment conditions, from the antiretaliation provision, which does not have such limitations. It ruled that an adverse employment action for retaliation claims does not need to alter employment terms, but must be materially adverse enough to dissuade a reasonable employee from filing a discrimination complaint. The Court justified this distinction by highlighting the different purposes of each provision: the antidiscrimination provision aims to prevent discrimination based on inherent traits, while the antiretaliation provision protects employees from retaliation for their actions in enforcing their rights. The ultimate goal of the antidiscrimination provision is to foster equality in employment opportunities, while the antiretaliation provision seeks to protect employees’ rights to act against discriminatory practices.
Focusing solely on employer actions related to employment fails to achieve the objectives of the antiretaliation provision. Retaliation can occur through actions unrelated to the workplace, and a narrow interpretation would not deter these forms of retaliation. O.R.S. 659A.040 serves as an antiretaliation statute, protecting employees based on their conduct in utilizing Oregon’s worker’s compensation system rather than their identity. While this aligns with Title VII's broader definition of adverse employment actions, the statute’s text limits actionable conduct to employment-related actions regarding hire, tenure, or employment conditions. Courts have consistently interpreted claims under this statute to require evidence of discrimination affecting these employment aspects. Oregon Court of Appeals decisions support this interpretation, necessitating that plaintiffs demonstrate discrimination in the terms or conditions of employment. No Oregon state court has analyzed actions under O.R.S. 659A.040 using the broader definition of retaliation. However, some cases before this Court have examined adverse employment actions under this broader definition.
Actionable employer conduct under O.R.S. 659A.040 is limited to actions affecting hiring, tenure, or other terms and conditions of employment. In this context, absentee letters sent to Davis did not impact her employment conditions and are therefore not actionable. Conversely, TriMet's refusal to hire or promote Davis after she filed a worker's compensation claim constitutes potentially actionable discrimination, as such actions are considered unlawful under the statute. Evidence indicates that Davis applied for several managerial positions post-claim and was not promoted, with her attendance score for one position recorded as zero.
To establish that alleged discriminatory acts were "because of" her use of the worker's compensation system, Davis must demonstrate that her claim invocation was a substantial factor in TriMet's adverse actions. The burden of proof for this causal link is minimal, allowing for indirect evidence, such as timing between the protected activity and subsequent discriminatory treatment, or direct evidence of retaliatory intent. Davis's injury occurred on August 13, 2009, and her claim closure on November 19, 2009, was followed by a partial denial from TriMet, which she disputed. An administrative law judge found TriMet's denial procedurally invalid, a decision upheld by the Oregon Court of Appeals in January 2014. Davis also provided evidence linking her ongoing medical issues to her on-the-job injury, suggesting her absences were related to this injury.
Davis is actively pursuing the inclusion of her lumbar spine issues in her worker’s compensation claim, which was originally open from August 13, 2009, to November 19, 2009. The litigation continues between her and TriMet concerning this claim. Evidence suggests that her zero attendance score during the hiring process for the Assistant Manager, Field Operations position, applied for in September 2010, may have resulted from her use of the worker’s compensation system. The documentation lacks clarity on which absences contributed to this score, particularly whether those related to her worker’s compensation claim were included. Additionally, there is a dispute over whether her other absences were indeed linked to her on-the-job injury, affecting the validity of the absences considered by TriMet. This situation presents factual issues for resolution.
The zero attendance score is deemed sufficient evidence of causation for Davis's failure to secure the promotion, fulfilling her minimal prima facie burden. TriMet has not provided a legitimate, non-discriminatory explanation for why this score did not constitute a violation of O.R.S. 659A.040, nor is there evidence to suggest that Davis's absences due to her injury were not factored into the scoring. Consequently, TriMet has failed to counter Davis's prima facie case regarding this adverse employment action.
The conclusion reached is that TriMet's motion for summary judgment on this discrimination and retaliation claim is denied regarding the zero attendance score, while it is granted concerning all other alleged adverse actions. Regarding the claim of failure to reemploy under O.R.S. 659A.046, the parties agree that Davis’s on-the-job injury meets the first element of her prima facie case. To maintain her reemployment rights, Davis must make a demand within seven days of being cleared to return to work, and if no suitable position exists, the employer is responsible for notifying her of any available positions thereafter.
An employee's right to reemployment ends three years after the date of a compensable injury, which in this case is August 13, 2012. A vacant position is deemed available, while a suitable position is defined as one similar to the former role in terms of compensation, duties, skills, location, and must align with the employee’s medical restrictions. Reemployment rights are also subject to any relevant seniority provisions or employment restrictions from a valid bargaining agreement. An employer has discretion regarding reemployment in positions that may constitute a promotion.
The case involves an employee, Davis, who asserts that her ongoing medical restrictions are linked to her workplace injury from August 13, 2009, while her employer, TriMet, contends that her inability to perform her former position is due to a preexisting condition. The dispute centers on whether the injury led to lumbar spine issues that hinder Davis's ability to fulfill her job responsibilities. The court will determine if the evidence presented allows for a reasonable inference that her workplace injury resulted in the claimed injuries. Summary judgment is only warranted if it is clear that no reasonable juror could find causation between the injury and the alleged harm.
Davis does not need to establish a compensable injury in a workers' compensation proceeding to pursue reinstatement or reemployment claims independently. Evidence from Dr. Puziss supports Davis's claim, indicating that her August 13, 2009 injury caused a herniated disc and other conditions, which were not preexisting and resulted in her inability to perform her job.
Evidence suggests a reasonable jury could conclude that Davis's workplace injury led to spinal injuries, rendering her unable to perform her regular job and activating reemployment requirements under O.R.S. 659A.046. TriMet contends that Davis failed to provide evidence of a timely demand for reinstatement, which must occur within seven days of a doctor clearing the employee to work under specific conditions. However, TriMet's argument is refuted by the timeline: after the Notice of Closure of Davis's claim on November 19, 2009, TriMet informed her that she was no longer eligible for light duty work. On November 20, 2009, Davis emailed her supervisor, indicating her intent to return while noting her ongoing medical restrictions, thereby making a timely demand.
On December 1, 2009, after a doctor's appointment, Davis presented her medical restrictions to Mr. Nielsen. Subsequently, on December 28, 2009, her primary care physician sent a letter requesting accommodations for her condition, which Davis delivered to Mr. Nielsen that same day. Over the following months, Davis consistently communicated her restrictions to TriMet following each medical update, demonstrating that her demands for suitable positions were timely.
TriMet acknowledged placing Davis in temporary "light duty" roles during her worker's compensation claim, which has a maximum eligibility of 60 days. After her claim closure on November 19, 2009, TriMet ceased to consider her for these positions, arguing that there were no suitable roles available and citing labor agreement requirements for bidding and seniority. In response, Davis claimed that positions such as bundling transfers, park and ride, and spotter shack could have been offered to her during the statutory reemployment period, though she provided no evidence of their actual availability from November 20, 2009, to August 12, 2012.
During Davis's worker’s compensation claim, TriMet sought to assign her to a light duty park and ride position, which her doctor deemed unsuitable due to her medical restrictions. Davis's argument confuses TriMet’s light duty policy with the standard for a suitable reemployment position under O.R.S. 659A.046. TriMet's light duty roles are temporary, and Davis only worked in some of these positions for a few days. A suitable reemployment position is defined as a permanent replacement for the injured worker's original role, provided it aligns with the worker's restrictions and is not eliminated for valid reasons, as per Or. Admin. R. 839-006-0135(5). Temporary light duty positions do not qualify as suitable for reemployment, supported by case law (Kelly v. Ironwood Commc’ns. Inc.). Moreover, reemployment in a suitable position is contingent on seniority and labor agreement provisions. Davis did not present evidence of any suitable, non-temporary positions being available or explain how TriMet could have placed her in a position for over two and a half years without following the required bidding process. Consequently, Davis did not establish a factual issue regarding the availability of suitable positions.
In terms of her Fourth and Sixth Claims for Relief, which allege employment discrimination under Oregon’s Rehabilitation Act and the ADA, the statutes prohibit discrimination based on disability regarding various employment aspects. To substantiate a prima facie case of discrimination under the ADA, Davis must demonstrate that she is considered "disabled," qualifies as a "qualified individual," and suffered an adverse employment action due to her disability. The Oregon Rehabilitation Act aligns with these ADA requirements.
The standard for establishing a prima facie case of discrimination under Oregon law aligns with federal standards. Oregon Revised Statutes (ORS) 659A.112 to 659A.139 should be interpreted consistently with the federal Americans with Disabilities Act (ADA). TriMet contends that Davis cannot demonstrate she faced an adverse employment action due to her disability. In response, Davis argues that TriMet failed to engage in the required interactive process to identify reasonable accommodations and that the time loss letters and denial of promotions were adverse actions linked to her disability.
The interactive process mandates that once an employer is aware of an employee's disability, both parties must actively communicate to explore potential accommodations. Key elements of this process include direct communication, consideration of the employee's requests, and offering reasonable accommodations. Employers who do not engage in this process in good faith may be held liable if a reasonable accommodation could have been provided. Good faith participation is an ongoing duty, and failure to fulfill an attempted accommodation does not absolve the employer from further engagement.
Liability for not participating in the interactive process is contingent on the existence of a reasonable accommodation, and employees must demonstrate an adverse employment action to establish such liability. In this case, Davis requested to return to work in a modified position after her workers' compensation claim was closed. TriMet responded by stating they would check for suitable positions and indicated she would need to use sick leave otherwise. There is limited evidence detailing TriMet's efforts to identify available positions or accommodations, such as conducting an ergonomics assessment.
Davis communicated her need for modified work and provided doctor's releases detailing her restrictions to TriMet on multiple occasions between December 1, 2009, and February 4, 2010, while on FMLA and OFLA leave, as well as using her paid leave. After her protected leave ended on February 9, 2010, a meeting was held to discuss her return to work and accommodations, including an ergonomic assessment. On March 9, 2010, Davis received another work release from her doctor, with restrictions effective March 23, 2010, and subsequently requested an ergonomics assessment, which TriMet conducted. TriMet complied with most of her accommodation requests, except for purchasing a lightweight electric impact tool, citing its tool allowance policy for mechanics.
The evidence indicates that TriMet engaged in the interactive process regarding accommodations beginning in February 2010. However, there is a factual dispute as to whether TriMet timely initiated this process after Davis's requests for modified work in late 2009. The lack of communication from TriMet between November 20, 2009, and February 10, 2010, meant that Davis used all her sick and vacation time and faced unpaid leave, leading to potential disciplinary action. This delay in engaging with Davis is considered an adverse employment action. While leave can be a reasonable accommodation, TriMet was still required to communicate directly with Davis to explore other reasonable accommodations. The argument that an ergonomics assessment could not be conducted until Davis returned to work in March 2010 is invalid, as she had been released to work with restrictions earlier. TriMet’s failure to engage in the interactive process during December 2009 and January 2010 remains unexplained, despite its ability to do so in February 2010.
Davis contends that TriMet did not adequately engage in the interactive process regarding her disability in 2011 and 2012, but the Court finds these claims unsubstantiated. The Court also concludes that time loss letters do not qualify as adverse employment actions in the context of Davis’s worker's compensation discrimination claim or disability discrimination claims. Regarding her failure to promote allegations, TriMet asserts that Davis was not promoted due to lack of qualifications. However, the Court notes evidence suggesting potential discrimination, particularly an attendance score of zero for the Assistant Manager, Field Operations position, which may indicate bias linked to her disability. A meeting with Mr. Talbot, where attendance and worker's compensation were highlighted as factors in candidate evaluation, further supports this inference. Although later evaluations showed improvements in attendance scoring, Davis consistently received low interview scores, which are subjective and may be influenced by unconscious bias, as recognized by various court precedents. This subjective nature of the evaluation process raises concerns about potential discrimination. Consequently, the Court denies TriMet's summary judgment regarding its interactive process engagement and the failure to promote Davis after August 13, 2009, while granting it for other alleged adverse actions.
Davis claims racial discrimination and retaliation against TriMet under O.R.S. 659A.030, asserting a theory of disparate impact; however, she only pled individual treatment discrimination and did not challenge any specific employment practices or demonstrate their impact on a protected group. Consequently, the court will not consider a disparate impact claim in its analysis of TriMet's motion for summary judgment, referencing Bova v. City of Medford, which prohibits advancing a disparate impact theory when only disparate treatment has been pled.
Davis alleges that TriMet discriminated against her on the basis of race by obstructing her job success, withholding training, and denying promotions and transfers, in violation of O.R.S. 659A.030. This statute makes it unlawful for employers to discriminate based on race, color, or national origin concerning hiring, discharge, or employment conditions. Claims under this statute are assessed similarly to Title VII claims, employing the McDonnell Douglas burden-shifting framework.
To establish a prima facie case of racial discrimination, Davis must demonstrate that she is a member of a protected class, qualified for her position, experienced an adverse employment action, and was treated less favorably than similarly situated individuals outside her class. The evidence required for this showing is minimal. However, Davis fails to provide specific evidence or arguments regarding TriMet's alleged violations, primarily focusing on her promotion claims, despite the existence of a substantial record. The court has no obligation to sift through the record for evidence on Davis's behalf, allowing for the possibility of summary judgment based on her lack of specificity.
The Court reviewed Davis’s racial discrimination claim and determined she established a prima facie case related to TriMet’s failure to promote her based on race. Davis, a member of a protected class, experienced adverse employment actions when not hired for managerial positions for which she was qualified, a fact not disputed by TriMet. TriMet claimed other candidates were more qualified; however, evidence did not conclusively support this assertion. The Court noted that Caucasian candidates were promoted without a competitive process, while Davis was not, despite her applications. Additionally, all managers demoted alongside Davis were subsequently promoted back, except for her and another individual.
TriMet's defense centered on the argument that the decision not to promote Davis was based on the qualifications of other candidates, which constitutes a legitimate, non-discriminatory reason. To challenge this, a plaintiff can demonstrate that the employer's non-discriminatory reason is pretextual by providing either indirect evidence of lack of credibility or direct evidence of discriminatory intent. The Court emphasized that these forms of evidence are not mutually exclusive and must be evaluated cumulatively. A plaintiff only needs minimal evidence to overcome a motion for summary judgment, as the ultimate question of discrimination is best resolved in full trial settings. The Court concluded that Davis's evidence raised a genuine issue of fact regarding TriMet's motive, suggesting that the employer's reason may be pretextual.
Evidence of pretext in employment discrimination cases may include an employer’s policies regarding minority employment. Davis claims that TriMet promotes Caucasian employees without a transparent application process and has not demonstrated that any minority employees received similar promotions. In 2007, when Davis was promoted to Assistant Manager, her colleagues were all white males who have since received further promotions, despite Davis holding a bachelor's degree and two associate’s degrees, while they only possess high school diplomas. Following her layoff in 2009, a Caucasian male promoted after her was not laid off. TriMet's justification for not promoting Davis to Director of Maintenance—citing her lack of specific qualifications—contradicts evidence that she holds relevant degrees and has over 16 years of experience at TriMet, exceeding the qualifications of the awarded Caucasian candidate. Similarly, for a 2010 Assistant Manager position, TriMet claims Davis was less qualified than a Caucasian male candidate, yet she had more relevant experience. The evidence suggests that the qualifications issue is a matter for factual determination, particularly as Davis’s interview performance was subjectively lower than that of her Caucasian peers, which raises questions about the employer's motives. Regarding Davis's retaliation claim under O.R.S. 659A.030, she did not contest TriMet’s motion for summary judgment, leading TriMet to argue for default judgment against her claim. However, courts cannot grant summary judgment by default.
The excerpt outlines the procedural standards for granting summary judgment under Federal Rule of Civil Procedure 56(e), emphasizing the necessity of undisputed facts and the court’s responsibility to evaluate these facts before granting such judgment. It highlights that failure to respond to an asserted fact may lead to that fact being deemed admitted, but this does not guarantee summary judgment; the court must still assess the undisputed facts and their legal implications.
The excerpt then shifts to analyzing Davis’s race retaliation claim under Oregon Revised Statutes (O.R.S.) 659A.030(1)(f), which parallels Title VII retaliation claims. To establish a prima facie case, the plaintiff must demonstrate engagement in protected activity, suffering an adverse employment action, and a causal link between the two. Davis claims she engaged in protected activities by sending tort claims notices and filing complaints regarding racial discrimination.
The court identifies the time loss letters as adverse employment actions, noting their potential to deter protected activity, despite not directly altering her employment conditions. However, there is no evidence linking Davis's protected activities to the adverse actions, and the decision-maker's knowledge of her protected activities is essential for a prima facie retaliation claim. Thus, while some actions may constitute retaliation, the lack of a clear causal connection weakens Davis's claim.
Plaintiff Davis must show that the decision-makers who denied her employment were aware of her protected activity to establish a prima facie case of race retaliation. However, Davis lacks evidence that those involved in her hiring process knew about her alleged protected actions, resulting in her failure to prove this claim. Despite this, the court finds sufficient evidence to deny TriMet's motion for summary judgment regarding Davis's claim of failure to promote her based on race discrimination. Conversely, summary judgment is granted against her claims of vague discrimination allegations and race retaliation.
In her ADA retaliation claim, Davis needs to demonstrate involvement in protected activity, an adverse employment action, and a causal link between them. Her request for reasonable accommodations qualifies as protected activity, and the time loss letters she received, along with the failure to promote her, constitute adverse actions. Evidence indicates that following her accommodation requests, TriMet issued time loss letters, suggesting a connection to her claims.
TriMet asserts it had legitimate, non-discriminatory reasons for sending the time loss letters and not promoting Davis, citing enforcement of attendance policies and the promotion of more qualified candidates, respectively.
The Court identifies a factual issue regarding the potential pretext of TriMet’s reasons for issuing time loss letters to Davis, based on the close timing of her accommodation requests. Established case law indicates that temporal proximity of a few months or less can support an inference of causation. In this case, adverse actions occurred within one day to a few months of Davis's protected activities. However, Davis lacks sufficient evidence to show that her request for accommodation, rather than her absences related to her disability, was a significant factor in TriMet's hiring decisions. Consequently, TriMet's motion for summary judgment is denied regarding the time loss letters but granted for other adverse actions, including the failure to promote Davis.
Regarding her claims under the FMLA, Davis alleges that TriMet interfered with her rights by retaliating for her taking protected medical leave. Under Ninth Circuit law, such claims are analyzed as "interference" claims under 29 U.S.C. § 2615(a)(1). The statute prohibits employers from interfering with an employee's rights under the FMLA, distinguishing these claims from those involving negative consequences simply for using FMLA leave, which fall outside the anti-retaliation provisions.
2615(a)(2) applies to employees opposing employer practices that violate the FMLA, categorizing Davis's claim as one for interference. To prove an FMLA interference claim, a plaintiff must demonstrate by a preponderance of the evidence that: 1) they took or requested protected leave; 2) the employer took adverse employment action against them; and 3) the leave was a “negative factor” in that decision. The employee can use direct or circumstantial evidence, unlike the McDonnell Douglas burden-shifting framework, which is not applicable to FMLA interference claims.
In Davis's case, TriMet assigned her a "zero" score for attendance in her application for the Assistant Manager, Field Operations position, without evidence that this score excluded absences related to her protected leave. This raises a factual question regarding possible interference with her FMLA rights. The emphasis on attendance in promotional decisions by TriMet, alongside Davis's significantly lower interview scores, supports her assertion that her protected leave negatively influenced her promotion prospects.
Additionally, Davis's claim can be viewed as a retaliation claim against TriMet for exercising her FMLA rights. In this context, adverse employment actions are broadly defined as any actions likely to dissuade a reasonable employee from asserting their FMLA rights. The time loss letters sent to Davis post-leave, citing her attendance issues and referencing 218 hours missed without excluding protected leave, qualify as adverse employment actions in the retaliation context.
On March 24, 2010, Davis received letters regarding her attendance issues, and the Court found that it could not conclusively determine that her use of protected leave was not a factor in TriMet's decision to issue these letters. Over the next two years, Davis continued to take protected leave and received ongoing time loss letters, with no evidence suggesting these letters excluded protected leave time. This raises a factual issue regarding potential retaliation by TriMet for her use of protected leave.
TriMet's motion for summary judgment on Davis's Family and Medical Leave Act (FMLA) and Oregon Family Leave Act (OFLA) claims is partially denied concerning the failure to promote her post-November 2009 and the time loss letters, but granted for all other alleged adverse actions. Davis also claimed wrongful discharge under Oregon common law but conceded to TriMet’s motion for summary judgment against this claim, resulting in the dismissal of her wrongful discharge claim.
TriMet's summary judgment motion is granted in part and denied in part, with a pretrial order due within 45 days. Davis remains employed by TriMet but has been on permanent disability since March 12, 2012. The document discusses the applicability of the Veteran’s Preference Statute to TriMet, a local government body, after amendments made on January 1, 2010, and June 2007, which expanded the requirement for veteran's preference points beyond civil service examinations. Although TriMet's alleged violation regarding Davis's veteran's preference points and her penalization for absences may not have directly resulted in the loss of a position, it does not absolve TriMet from liability for violating multiple statutes related to the promotion process.
Davis's claims under the Veteran's Preference Statute will be tried by the Court rather than a jury, as established by O.R.S. 659A.855. The determination of whether TriMet wrongfully assigned Davis a score of zero for attendance is crucial, as it influences her claim regarding the failure to receive the veteran's preference for the Assistant Manager, Field Operations position. This claim will be addressed after the jury trial concerning her other claims. The Court highlights that the combination of Davis’s zero attendance score and TriMet's alleged violation of the Veteran's Preference Statute led to her not obtaining the second-highest score for the position, which was awarded to another candidate. TriMet contends that it hired better-qualified candidates as a legitimate, non-discriminatory reason for not promoting Davis. However, the Court rejects this argument concerning Davis's worker's compensation discrimination and retaliation claims, noting that TriMet failed to justify the zero score and did not provide evidence that it was not linked to Davis's worker’s compensation claim. Despite ongoing attendance issues, Davis scored above zero for other positions she applied to, and the zero score occurred after she filed her worker’s compensation claim, suggesting possible pretext. The Oregon Supreme Court has not yet determined the preclusive effect of a worker's compensation decision. The Workers Compensation Board closed Davis's claim in September 2012 without obligation to reopen it, but she filed a new claim in February 2013 to include lumbar spine issues, which is under appeal. The Court does not need to adjudicate preclusion at this time. Additionally, while Davis asserts claims of racial discrimination, retaliation, and disparate impact under Title VII in her response to TriMet's summary judgment motion, these claims were not included in her First Amended Complaint. Under Oregon law, a plaintiff can succeed on a disparate impact claim by proving that an employer's standard or policy affects members of a protected class disproportionately.
The plaintiff is a member of a protected class and claims to have been harmed by the employer's policies. Davis references her military experience, which she indicated through a DD Form 2586 submitted to TriMet, though this form is not included in the summary judgment record. There is ambiguity regarding the employment history of a successful candidate, specifically whether he held a supervisory role for the full 15 years or was promoted after starting as a Field Operations Supervisor in 1987 while also attending college. The legal context involves claims of discrimination and retaliation under Sections 2615(a)(2) and 2615(b) of the Family and Medical Leave Act (FMLA). Section 2615(a)(2) prohibits employers from discriminating against individuals for opposing unlawful practices, while Section 2615(b) prohibits discrimination against individuals for participating in FMLA-related proceedings, such as filing charges or providing testimony.
