Arnoth v. DHL Express (USA), Inc., No. 3:2009cv00241 - Document 64 (D. Or. 2010)
Court Description: OPINION AND ORDER: DHL'S Motion for Summary Judgment 36 is granted with respect to Arnoth's claims for injured worker discrimination and failure to reinstate, in violation of Or. Rev. Stat. 659A.040, 659A.043 and 659A.046; DHL's motion for summary judgment is DENIED with respect to Arnoth's claim for disparate treatment sex discrimination under Or. Rev. Stat. 659A.030 (a) and (b). Signed on 3/2/10 by Magistrate Judge Dennis J. Hubel. (ljl)
Download PDF
<![CDATA[
1 FI l£D'1O t'\1R 02 13:41USOC-!)if 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF OREGON 9 10 RHONDA ARNOTH, 11 Plaintiff, 12 13 Case No. CV 09-241-HU v. OPINION AND ORDER DHL EXPRESS (U.S.A.), INC., 14 Defendant. 15 16 17 Katelyn S. Oldham Oldham Law Office 620 S.W. Sixth Avenue Portland, Oregon 97205 Attorney for plaintiff 18 21 Richard R. Meneghello Laura P. Jordan Fisher & Phillips 111 S.W. Fifth Avenue, Suite 1250 Portland, Oregon 97204 Attorneys for defendant 22 HUBEL, Magistrate Judge: 19 20 23 This is an action by Rhonda Arnoth against DHL Express U. S .A., 24 Inc. (DHL) , asserting claims for injured worker discrimination and 25 failure to reinstate, in violation of Or. Rev. Stat. §§ 659A.040, 26 659A.043, and 659A.046; 27 28 OPINION AND ORDER Page 1 and for disparate treatment sex 1 discrimination under Or. Rev. Stat. 659A.030 (a) and (b). She seeks 2 damages for past and future lost wages and benefits; compensatory 3 damages for emotional distress; and reinstatement to her former 4 position or a comparable one. 5 Arnoth worked for DHL in the Portland station as a Field 6 Service Supervisor, the only female in that position at the time of 7 her termination. 8 compensation claim, which DHL accepted on February 19, 9 February 14, she was released to return to modified work On December 20, 2008, 2007, Arnoth filed a worker's 2008. On 10 duty, but DHL terminated her on February 13, 2008, 11 reduction 12 seniority than other Field Service Supervisors in Portland who were 13 not laid off, and that none of the male Field Service Supervisors 14 at the Portland station lost his job when she did. 15 DHL moves for summary judgment on all claims. 16 in force (RIF). Arnoth alleges that as part of a she had more Factual Background 17 Arnoth was hired at the Portland station in May 2006. She was 18 one of six Field Services Supervisors at the Portland station, the 19 only female in that position. Two of the Field Services Supervisors 20 were hired before Arnoth, 21 Declaration of Stephen Quimby 22 ~ 23 Manager (DFSM) Ardeen Porter. Declaration of Laura Jordan Exhibit 24 1 (Pltf. dep.) 75:23-76:8. During Arnoth's employment, the Portland 25 station operated Monday through Saturday. Quimby Declaration 26 There were three supervisor shifts on weekdays: an opening shift, ~ 4; Declaration of Katelyn Oldham, 8, Exhibits 6 and 7. Arnoth reported to District Field Services 27 28 and three were hired after she was. OPINION AND ORDER Page 2 ~ 5. 1 a midday shift, and a closing shift. 2 each supervisor was responsible for supervising particular aspects 3 of the operation, 4 ramp, 5 expected to 6 station. Id. 7 the including the inbound and outbound sort, drivers, fill Id. During weekday shifts, and in as the agents. needed, Id. Supervisors were depending on the needs the also of the The Saturday shift had only one shift with one supervisor, 8 because fewer 9 moved through the facility, compared to weekdays. Pltf. dep. 80:7- 10 13; 81:2-4. The supervisor assigned to the Saturday shift worked 11 Tuesday through Saturday, while the other supervisors worked Monday 12 through Friday. Quimby Declaration 13 vary on the basis 14 Saturday shift affect a supervisor's opportunities for advancement 15 within the company. Quimby Declaration 16 that the Saturday supervisor job was less desirable because the 17 Saturday supervisor operated alone, 18 interact with other supervisors or the DFSM. Quimby Declaration 19 6; Pltf. dep. 8:18-9:9; 160:12-14. employees worked on Saturdays and fewer packages of their ~ 6. Supervisors' pay did not shifts, nor did assignment ~ to the 6. However, Arnoth asserts had no support, and did not ~ 20 The duties of Field Services Supervisors changed depending on 21 the needs of the station. At various times, Arnoth was in charge of 22 inbound operations, outbound operations, 23 and supervision of the Saturday shift. Quimby Declaration 24 pltfs. dep. 70:10-17; 79:20-80:6. 25 26 In July 2007 Porter Declaration of David Grudin 27 28 OPINION AND ORDER Page 3 ~ transferred check ride supervision, to another ~ 5; station. 4. In late September or October 2007, 1 Stephen 2 Quimby Declaration 3 between Porter's transfer and Quimby's arrival, 4 Chris Rooney supervised the Field Services Supervisors. Pltfs. dep. 5 77:25-78:3. 6 7 Quimby became ~ the new DFSM for the Portland station. 2; pltfs. dep. 77:25-78:3. During the interval station manager Rooney assigned Arnoth to the Saturday shift, telling her he needed someone with her experience for that shift. PI tfs. dep. 8 11:24-12:1; 12:14-19. Arnath has testified that "past practice" 9 dictated that the least senior supervisor assume Saturday shift 10 duties. 11 Saturday shift position was occupied by Arnoth, two other women, 12 and one man. P1tf. dep. 14:4-18:6. 13 Id. Quimby at 13: 22-14: 3. During Arnoth's supervised Arnoth November, and for December tenure approximately 2007 to DHL, three her the months, 14 October, 15 December 20, 2007. When Quimby became DFSM, he did not change the 16 schedules of the Field Services Supervisors. Quimby Declaration 17. 17 Accordingly, Arnoth continued to work Tuesday through Saturday. Id. 18 Arnoth has testified that in October 2007, Quimby assigned her which "made for prior at to dispatch duties, 20 10:14-24. According to Arnoth, Quimby's stated reason for assigning 21 her to dispatch was to cover for the regular dispatcher while she 22 was out on maternity leave. Arnoth Declaration 23 that she believes other administrative staff could have performed 24 these duties, 25 2007, and even by the time of her termination in February 2007, the 26 regular dispatcher had still not gone on maternity leave. ~ OPINION AND ORDER Page 4 dep. 4. Arnoth states and that by the time of her injury, 27 PI tf. on 19 28 12 hour days." inj ury December 20, Id. 1 Arnoth states that none of the male supervisors was assigned to 2 dispatch. Id. 3 the male supervisors was required to dispatch on Monday, her day 4 off. Id. Arnoth also states that to her knowledge, none of Arnoth has testified that in October 2007, Quimby yelled at 5 6 her in front of staff, see Arnoth Declaration 7 supervisors' and that 8 supervisors' meetings, the frequency of which declined from weekly 9 to "maybe once a month." Id. meetings, he began 23:15-21; to <j[ 7,1 and during exclude her 26:1-8. 2 However, from Arnoth 10 made no complaints to management about Quimby's treatment of her. 11 Quimby Declaration <j[ 8; Grudin declaration <j[ 5. 12 Arnoth states in her declaration that when she was assigned 13 dispatch duties, she told Quimby it would be difficult to reconcile 14 dispatching with her other job duties requiring that she be in the 15 field for periods of three to eight hours at a 16 Declaration 17 required to spend as much time in the field, and could more easily 18 have handled dispatching. rd. Quimby refused her request to assign 19 some of her duties to other supervisors. Id. 20 21 <j[ 5. time. Arnoth Arnoth states that other supervisors were not In November 2007, DHL announced elimination of its domestic express service and ground services, which were phased out in 2008 22 23 24 Arnoth also states in her declaration that she saw Quimby yell at Porter during a meeting, and that drivers frequently complained to her about Quimby's "communication style." Id. at <j[ 7. 1 2S 26 2Arnoth has testified that meetings usually occurred once a week, but that they were held only about once a month during DHL's busy season, November and December. Pltf. dep. 26:4-8; 27 50:7-9. 28 OPINION AND ORDER Page 5 1 and discontinued entirely by January 2009. 2 Aguilar 3 ~~ 3, 4. On December 15, to Declaration of Kelly ensure 2007, Arnoth was given an oral warning for 4 failure deli very of Saturday Nordstrom shipments 5 October 2007 and December 2007. The warning was documented as a 6 ~Corrective 7 Declaration, Exhibit 3. Arnoth has testified that Quimby did not 8 discipline 9 Nordstrom deliveries. Pltf. dep. 24:22-25:25. Action." Quimby Declaration male supervisors who were ~ 10, in Exhibit 3; Oldham responsible for failed 10 On December 20, 2007, Arnoth injured her hip and wrist when 11 she tripped and fell over a box at work. Pltf. dep. 36:16-37:16; 12 38:2. She sought medical treatment the following day and was taken 13 off work for right wrist strain and contusion of the right hip, see 14 Mantilla Declaration, Exhibit 1, because Arnoth's commute was long 15 enough to cause her leg to go numb. 16 43:7-13. Arnoth was off work on medical leave from December 21, 17 2007 18 Exhibit 2. 19 to February 14, Mantilla states 2008. Pltf's dep. 39:3-6, 16-24; Declaration of Lucia Mantilla that based on her experience as a ~ 4, claims 20 specialist, she thought Arnoth's claim involved a relatively light 21 incident that should not have resulted in such an extended period 22 of time off work. Id. She states further that orthopedic guidelines 23 for treatment of injuries such as Arnoth's contemplate that the 24 patient will be medically stationary within 30 days of the injury. 25 Id. See also Exhibit 3, p. 7 (opinion of neurosurgeon Paul Williams 26 that ~[t]reatment or four weeks after the injury is appropriate, 27 28 OPINION AND ORDER Page 6 1 reasonable, and necessary for a right wrist strain and a contusion 2 of the right hip and leg"). Mantilla investigated Arnoth's claim, 3 including arranging for an independent medical examination (IME), 4 a procedure Mantilla ordered in the maj ori ty of the claims she 5 handled for DHL. Id. 6 The physician who performed the IME, Paul Williams, M. D. , 7 concluded that Arnoth was medically stationary and immediately 8 capable of performing her job without restriction as of the date of 9 her examination, January 29, 2008. Id. at i 6. Mantilla states that 10 she sent Dr. Williams's report to Arnoth's attending physician, who 11 concurred with Dr. Williams, but did not send in the concurrence 12 until March 7, 2008. Id. at Exhibit 3. 13 After receiving the attending physician's concurrence, 14 Mantilla proceeded to close Arnoth's worker's compensation claim. 15 rd. at i 16 claim closure via certified mail, which confirmed that Arnoth was 17 released to work with no restrictions. rd.; Exhibit 4. 7. On March 11, 2008, Mantilla mailed Arnoth a notice of 18 Meanwhile, in January 2008, David Grudin in HR received word 19 from the corporate office that DHL was beginning the process of 20 making 21 layoffs to occur on February 12 and 13, 2008. Grudin Declaration i 22 6. The decision about how many employees would be laid off from 23 each station, and what type of employee, was made on a corporate 24 level outside Portland, not at the station level. rd. The corporate 25 directive required the Portland station to eliminate one Field 26 Services Supervisor. Id. Grudin states that as part of the process, significant labor 27 28 OPINION AND ORDER Page 7 reductions, with the first round of 1 he was provided with characteristics to be assessed in determining 2 which employees would be selected for the first round of layoffs. 3 Id. 4 Grudin worked with regional managers and District Field 5 Services managers, including Quimby from the Portland station, to 6 obtain information about the employees, which included categories 7 of past performance, 8 competencies. 9 included an employee's leadership abilities, Id. current performance, at <:II 7. Critical critical skills, skills that were assessed job knowledge, ~aintain and and 10 ability 11 standards. 12 other things, an employee's skills and abilities in the areas of 13 communication, organization, and management. Id. 14 a consideration. Id. 15 subjective, with employees being rated on a scale of zero to three. 16 Oldham Declaration, Exhibit 9. 17 to achieve Id. service goals and productivity Competencies that were assessed included, The among Seniority was not scoring criteria were primarily Quimby rated his subordinates and gave his ratings to Grudin. 18 Quimby Declaration 19 the 20 Quimby onto a spreadsheet, which generated an overall rating for 21 each employee. Grudin Declaration 22 points, 23 Services Supervisors were ranked higher, with four receiving 11 out Field <:II Services Arnoth was 12. Quimby gave Arnoth the lowest rating among Supervisors. Id. 3 <:II Grudin entered data from 8. Out of a possible 21 total given eight points. All of the male Field 24 25 27 3 Arnoth's 2006 Performance Evaluation, completed by Porter and signed by Arnoth in March 2007, gives her an overall performance rating of "fully meets," but with scores in some areas of "partially meets." Jordan Declaration, Exhibit 3, p. 2. 28 OPINION AND ORDER Page 8 26 1 of 21 points, and another receiving 13 points. Id. 2 The first round of layoffs was February 12-13, 2008. According 3 to Grudin's Declaration, during this first round, approximately 25 4 supervisors and managers in DHL's western area were laid off, 5 including 19 male supervisors and managers, six of whom were male 6 Field Services Supervisors. Id. at 7 Quimby and Grudin called Arnoth to inform her that her position was 8 being eliminated. It is not disputed that Arnoth was the only Field 9 Services Supervisor at the Portland station laid off in this round. 10 Arnoth received three weeks of severance pay, based on her length 11 of service 12 subsequent rounds of layoffs, three more Field Services Supervisors 13 lost their jobs at the Portland station: Ryan Cook, laid off in 14 October 2008, Corey Hester, laid off in February 2009, and Trent 15 Larsen, laid off in March 2009. Quimby states that when he left DHL 16 in March 2009, only two Field Services Supervisors remained at the 17 Portland station. 18 at the Portland station eventually declined from 114 on January 1, 19 2006, to 33 as of November 2009. Aguilar Declaration (two years) with DHL. 22 23 10. On February, 13, 2008, Id. Quimby Declaration ~ According to Quimby, in 13. The number of employees ~ 4. Discussion 20 21 ~ l. Sex discrimination disparate treatment claim a. Prima facie case A prima facie case of disparate treatment under Oregon's 24 discrimination 25 Henderson v. Jantzen, 79 Or. App. 654, 657 (1986) . The prima facie 26 elements of the disparate treatment case are, first, that plaintiff statutes 27 28 OPINION AND ORDER Page 9 is the same as that for Title VII. 1 is a member of a protected class; second, that she was meeting the 2 employer's legitimate expectations; third, that she experienced an 3 adverse employment 4 individuals action; outside her and fourth, protected that similarly situated class were treated more 5 favorably, or other circumstances surrounding the adverse action 6 give rise to an inference of discrimination. Godwin v. Hunt Wesson, 7 Inc., 150 F.3d 1217, 1220 (9 th eire 1998). DHL asserts that Arnoth 8 has not shown that she experienced an adverse employment action or 9 that similarly situated males were treated more favorably. 10 In the context of a discrimination claim, adverse employment 11 action 12 retaliation 13 employment or alter the conditions of the workplace." Burlington N. 14 & Santa Fe Rwy. Co. v. White, 126 S.Ct. 2405, 2411 (2006); Kang v. 15 U. Lim Am., Inc., 296 F.3d 810, 818-19 (9 th Cir. 2002). DHL asserts 16 that none of the circumstances complained of by Arnoth constituted 17 an adverse employment action. 18 is construed claim, more and narrowly is limited than to in the context "actions that of a affect The areas in which Arnoth asserts she was treated differently 19 from the male Field Services Supervisors are 1) 20 supervisory meetings; 2) 21 given no assistance with the safety manager aspects of her job; 4) 22 continual assignment to the Saturday shift; 5) being disciplined 23 for minor issues when other male supervisors were not disciplined 24 for more serious issues; 25 comparators who were less experienced and or had more performance 26 deficiencies; and 7) being selected for termination based on that 27 28 OPINION AND ORDER Page 10 exclusion from assignment to dispatch duties; 3) being 6) receiving a lower rating than male 1 lower rating. 2 Arnoth asserts that shortly after Quimby arrived, he began 3 excluding her from supervisory meetings, 4 wanted her to dispatch. Arnoth Declaration ~ 3. Arnoth states that 5 Quimby's exclusion of her from supervisory meetings was detrimental 6 to her ability to perform her job because crucial information was 7 exchanged, and the meetings provided an opportunity to speak with 8 and listen to peers and upper level management. Arnoth Declaration 9 ~~ 2-3. DHL challenges this testimony, on the ground that he pointing out that Arnoth 10 acknowledges supervisors' 11 month during the busy season, between November and January. Arnoth 12 Declaration 13 supervised Arnoth (November and December), meetings occurred only 14 once a month. 15 Arnoth's absence from the meetings had any effect on her pay, 16 benefits, or opportunities for advancement. Quimby Declaration 17 ~ 2. Thus, meetings were held only about once a for two of the three months DHL also points to the absence of evidence that With respect to the assignment of dispatch duties, that Quimby dispatch 19 nonsupervisory 20 dispatch to Arnoth was that the regular dispatcher was expected to 21 be out on scheduled maternity leave, but Arnoth states that the 22 dispatcher had still not taken her leave when Arnoth was injured in 23 December 2007. Arnoth also asserts that on Mondays, her day off, 24 Quimby did not assign any of the male supervisors to dispatch. 25 Arnoth has stated that dispatch was a hardship for her, because it 26 conflicted with other job duties requiring her to be out in the 28 OPINION AND ORDER Page 11 Quimby's been stated performed reason for by Arnoth contends 27 have 6. 18 employee. could ~ another assigning 1 field, and "made for 12 hour days." 2 DHL counters that Arnoth has produced no evidence that the 3 dispatch assignment affected 4 employment 5 advancement, nor any evidence that Arnoth's pay was docked or that 6 she was disciplined for not being in the field. DHL also points to 7 evidence from Quimby that 8 worked 12 hour days, 9 "made for 12 hour days" does not distinguish her from her male including pay, the terms benefits, and conditions of or opportunities her for Field Services Supervisors typically so Arnoth's statement that dispatch duties ~ 10 comparators. Quimby Declaration 6. Arnoth herself testified that 11 other supervisors worked similarly long days (11 hours). Pltf. dep. 12 9:8-24. I find no evidence in the record that Arnoth worked more 13 hours than any male Field Services Supervisor. Arnoth asserts that Quimby denied her request for assistance 14 15 with the safety manager aspects of her job. 16 5. 17 points to evidence that supervisors often asked for assistance with 18 one aspect 19 Exhibit 2 20 supplied Arnoth with contact information for experts within DHL who 21 could 22 participated in a weekly 90-minute conference call facilitated by 23 regional safety manager Kelly Tatum, in which safety supervisors 24 from each station in Ms. Tatum's region would call in to discuss 25 pending worker's compensation claims. 26 Exhibit 3 (Tatum dep.) 41:1-17; 42:6-19. DHL points to the absence Arnoth does not specify what her specific request was. or another of their (Quimby dep.) assist her, OPINION AND ORDER Page 12 jobs. ~ DHL Jordan Reply Declaration 73:10-13. Quimby also testified that he Quimby 27 28 Arnoth Declaration dep. 72:19-73:3, and that Arnoth Jordan Reply Declaration, 1 of any evidence that a failure to provide Arnoth assistance with 2 her safety duties adversely affected Arnoth's pay , 3 opportunities for advancement. 4 5 Arnoth contends that she was treated requested relief from the Saturday shift. benefits or unfairly when she Arnoth states in her 6 declaration that when Porter had been DFSM, she had rotated this 7 shift. Arnoth Declaration 1 6. Arnoth states that she told Rooney 8 she would rather not work the Saturday shift so that she could 9 attend her 10 Saturdays. 11 constituted treatment unfair to her, she points to evidence that 12 after her termination, the Saturday shift was not reassigned to one 13 of the five remaining male supervisors, 14 Oldham Declaration, Exhibits 23 and 24. son's Id. sporting events, which typically occurred on In support of her assertion that Saturday shifts but became rotational. 15 DHL challenges Arnoth's assertion that working the Saturday 16 shift was an adverse employment action that required Arnoth to 17 assume 18 supervisors and affected her opportunity for promotion because her 19 manager 20 necessarily follows from Arnoth's assertions that assigning anyone 21 to 22 action. DHL also argues that Arnoth has overlooked her other four 23 workdays, 24 comparison to her male comparators. But DHL's arguments fail to 25 address Arnoth's assertion that the Saturday supervisor shift was 26 not rotated among the other supervisors when she had it. the additional was not Saturday responsibilities at work shift would which were weekdays, 27 28 on OPINION AND ORDER Page 13 not Saturdays. constitute borne DHL an by the asserts adverse other that it employment a difference of only one day in 1 Arnoth asserts that during her employment she was subjected to 2 yelling and profane language from Quimby, and states that while she 3 does not assert a claim of hostile work environment, Quimby yelled 4 at Arnoth and other women, including Porter, but did not treat male 5 employees the same way. 6 dispute this assertion, but counters that yelling does not rise to 7 the level of an adverse employment action. Nunez v. City of Los 8 Angeles, 147 F.3d 867, 875 (9 th Cir. 1998) (threats and harsh words 9 insufficient to constitute adverse employment action). 10 Pltf. dep. 23:15-24:25. DHL does not Arnoth asserts that she was disciplined by Quimby for conduct 11 that 12 employees. 13 the Nordstrom packages in October and December 2007, and asserts 14 that the first of these errors was caused by a driver's error. 15 Quimby Declaration, Exhibit 1. Arnoth acknowledges that the missed 16 Nordstrom shipment in December was her responsibility, 17 testified that there were 18 the 19 executives throughout the company indicated that DHL and Nordstrom 20 were working together on these 21 158:3-18. DHL asserts that the oral warning is the lowest level of 22 corrective action, see Quimby dep. 71:2-10, and did not constitute 23 an adverse employment action. 24 would not Arnoth refers to the oral warning she was given about Portland When have been disciplined when engaged in by male the station was evidence ~issuesn ~working with Nordstrom shipments that on, n ~ issues. n pertaining but has to and that PI tf. e-mails dep. Arnoth's from 92: 12-93: 2; assignment to 25 dispatch duties and the Saturday shift on a non-rotational basis, 26 Quimby's yelling at her, her exclusion from meetings apparently in 27 28 OPINION AND ORDER Page 14 1 part because of being required to do dispatch, and receiving the 2 lowest rating on the RIF matrix, is considered along with the fact 3 that the 4 Portland station was its only female Field Services Supervisor, 5 while three males with less experience remained, it is sufficient 6 to Field Services satisfy Arnoth's burden of similarly showing male she was Field the treated differently 8 Supervisors. Her termination was unquestionably an adverse 9 employment action. I situated that layoff at 7 10 from Supervisor selected for Services conclude that Arnoth has made out a prima facie case of sex discrimination. 11 b. 12 DHL Nondiscriminatory explanation can rebut Arnoth's prima facie case by producing a 13 legitimate, nondiscriminatory explanation for Arnoth' s termination. 14 St. Mary's Honor Center v. Hicks, 509 u.S. 502, 506-07 (1993). DHL 15 must produce evidence, not merely express an argument. Rodriguez v. 16 GMC, 904 F. 2d 531, 533 (9 th Cir. 1990). DHL contends that Arnoth was 17 terminated for a non-discriminatory reason, i.e., the company-wide 18 RIF of which Arnoth was a part. 19 RIF. It has produced evidence of the 20 c. Pretext 21 DHL has produced a legitimate, nondiscriminatory explanation 22 for Arnoth's termination: the burden shifts back to her to produce 23 evidence 24 pretextual. On summary judgment, Arnoth' s burden is only to produce 25 enough evidence to allow a reasonable fact finder to conclude that 26 her that the termination DHL's was motivated 27 28 proffered nondiscriminatory OPINION AND ORDER Page 15 by discrimination. reason Peterson is v. 1 Hewlett Packard Co., 358 F.3d 599, 603 (9 th Cir. 2004); Warren v. 2 City of Carlsbad, 3 accomplished 4 discriminatory 5 indirectly by showing that the employer's proffered explanation is 6 unworthy of credence." Texas Dep't of Community Affairs v. Burdine, 7 450 8 9 u.s. 58 F.3d 439, "either reason directly more (9 th Cir. 443 by 1995). This may be persuading likely the motivated the court that employer a or 248, 256 (1981). The mere fact that she was terminated as part of a RIF does not foreclose Arnoth's claims. Circumstantial evidence can show 10 that a supervisor's RIF scores were pretextual, particularly for 11 evaluations 12 leadership." EEOC v. Boeing Company, 577 F.3d 1044, 1052 (9 th Cir. 13 2009). Arnoth's own testimony about why her low scores were wrong, 14 mistaken, or unworthy of credence is also evidence. Id. 15 As in "soft-skill" categories discussed, Arnoth has produced such as "communication/ evidence that she was 16 treated differently from the male supervisors in several respects, 17 particularly by Quimby. Quimby's ratings of Arnoth, assessed after 18 less than three months as her superior, were almost entirely based 19 on "soft-skill" categories, including the possession of unspecified 20 "unique 21 "self-confidence and self-esteem of others;" 22 orientation;" 23 adaptability;" 24 communication." These qualities were rated on a scale defined by 25 other soft criteria, such as "less than fully competent in some or 26 most skills and abilities," (zero) and "currently less than fully skills;" "leadership," "teamwork and OPINION AND ORDER Page 16 "[m]aintain[ing] collaboration;" "communication," 27 28 and including the "customer service "initiative including and "nonverbal 1 competent in some skills and abilities 2 most aspects of the job requirements and with additional training 3 and/or experience can meet the expectations of the job" (one). See [but] ... is able to meet 4 Oldham Declaration Exhibit 9. 5 Arnoth has produced sufficient evidence to allow a reasonable 6 fact finder to conclude that her termination was motivated by sex 7 discrimination. DHL's motion for summary judgment on this claim is 8 denied. 9 2. Injured worker discrimination claim A prima facie case of unlawful termination based on injured or 10 11 status 12 workers compensation system; 13 employment action; and 3) a causal link exists between the two. See 14 Williams v. 15 McDonnell Douglas framework applies to such claims. Scott v. Sears, 16 Roebuck & Co., 395 F.Supp.2d 961, 981 (D. Or. 2005). To 17 requires the following: Freightliner, satisfy the 2) LLC, causal 1) that plaintiff invoked the that she experienced an adverse 196 Or. element, App 83, Arnoth 90 must (2004). show ~factor The that 18 invocation of the workers compensation system was a 19 made a difference" in DHL's decision to terminate her employment. 20 Dickison v. Wal-Mart Stores. Inc., 21 2, 22 compensation claim and a 23 without more, 24 between the two events. Hardie v. Legacy Health System, 167 Or. 25 App. 425, 433 (2000); Kotelnikov v. Portland Habilitation Center, 26 545 F. SUppa 2d 1137 (D. Or. 2008). 2007). 2007 WL 1959287 *3 (D. Or. July Temporal proximity between the filing of a worker's subsequent adverse employment action, does not establish the required causal connection 27 28 that OPINION AND ORDER Page 17 1 Arnoth asserts that Mantilla's investigation into her worker's 2 compensation claim is 3 animus. 4 investigated 5 ordering an IME in 90% of the claims she handled for DHL. Jordan 6 Reply Declaration, exhibit 4 (Mantilla dep.) 132: 23-25; 133:7-9, 7 13-15. 8 claim was 9 concurred in the opinion of the IME doctor. DHL sufficient counters numerous with to demonstrate discriminatory Mantilla's claims in the testimony that manner Arnoth's, same as she DHL also points out that Arnoth's worker's compensation accepted, and closed only after Arnoth's physician Arnoth also relies on the timing between her injury and her 10 11 termination date to create an inference of discrimination. 12 Coszalter v. 13 (timing 14 additional evidence of surrounding circumstances must support such 15 an inference). DHL argues that Arnoth has not produced additional 16 evidence of supporting circumstances that support an inference of 17 discrimination, 18 Quimby, 19 employees, including males, were laid off the same day as Arnoth. 20 I 21 compensation 22 insufficient. DHL is entitled to summary judgment on this claim. City of Salem, alone nor conclude does not 320 support F.3d 968, inference See 978 (9 th Cir. of discrimination; 2003) and that it has produced evidence that neither Grudin that chose Arnoth the has discrimination 23 3. 24 Under Oregon law, layoff no date, evidence except for and to that support timing, many DHL worker's which is Failure to Reinstate or Reemploy reinstatement rights do not arise if the 25 employer establishes that the worker was discharged from her pre- 26 injury position for reasons unrelated to the injury or her worker's 27 28 OPINION AND ORDER Page 18 1 compensation claim. Lane County v. 2 (1990); see also OAR 839-006-0131(1) (g), OAR 839-006-0136(7). 3 State, 104 Or. App. 372, 377 DHL argues that Arnoth's status as an injured worker did not 4 preclude DHL from considering 5 regulations implementing Or. Rev. 6 injured worker has 7 employment benefit than if the worker had not been injured." 8 839-006-0130 (10); 9 this argument in her papers. ~has her for the 2008 layoffs. The Stat. §659A.043 state that an no greater right to a position or other 839-006-0135 (12). OAR Arnoth has not responded to 10 Additionally, DHL argues that Arnoth failed to preserve her 11 right to reinstatement by making a timely demand on the employer, 12 as required under OAR 839-006-0130(d) and 839-006-0135(b). Arnoth 13 counters that any such demand would have been futile under OAR 839- 14 006-0130(7) and OAR 839-006-0135(10), which exempt a timely demand 15 if "the employer has made it known" that reinstatement or re- 16 employment will not be considered. However, DHL points to testimony 17 from Arnoth that during her conversation with Quimby and Grudin on 18 February 13, 19 Pltf. 20 severance package Arnoth received clearly stated that she 21 eligible for rehire. find it 22 unnecessary to reach this argument because I conclude that DHL has 23 met its burden of showing that Arnoth was terminated for reasons 24 unrelated to her injury or her worker's compensation claim. The 25 survival of Arnoth's 26 worker's compensation dep. 2008, she was told she was "more than rehirable." 66: 9-16. In DHL points Grudin Declaration, out, the Exhibit 2. sex discrimination claim cannot discrimination 27 28 addition, OPINION AND ORDER Page 19 and failure to I written save was the reinstate 1 claims. DHL's motion for summary judgment on this claim is granted. 2 Conclusion 3 DHL's motion for summary judgment (doc. # 36) is GRANTED with 4 respect to Arnoth's claims for injured worker discrimination and 5 failure to reinstate, in violation of Or. Rev. Stat. 6 659A.043, and 659A.046; DHL's motion for summary judgment is DENIED 7 with 8 discrimination under Or. Rev. Stat. 659A.030 (a) and (b). 9 respect to Arnoth's claim for disparate §§ 659A.040, treatment sex IT IS SO ORDERED. 10 11 Dated this ~ 6IW day of =-- , 2010. 12 13 14 Dennis ames Hubel United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OPINION AND ORDER Page 20
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
