UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

JOSE RAMIREZ,

Plaintiff, 

v.

LINCARE, INC., a corporation,

Defendant.

Case No. 3:14-cv-00836-ST

FINDINGS AND 

RECOMMENDATION

STEWART, Magistrate Judge:

INTRODUCTION

Plaintiff, Jose Ramirez (“Ramirez”), filed this action in Multnomah County Circuit Court 

alleging that his former employer, defendant Lincare, Inc. (“Lincare”), created a hostile work 

environment and wrongfully terminated him in retaliation for reporting Lincare’s violations of 

state and federal safety laws. As a result, he alleges claims for violations of the Oregon Safe 

Employment Act, ORS 654.062(5) (First Claim), violations of Oregon’s wage statutes, 

ORS 652.140–.150 (Second Claim), and potential punitive damages (Third Claim). 

On May 22, 2014, Lincare timely removed the action to federal court (docket #1). This 

court has diversity jurisdiction over the case because Ramirez is an Oregon citizen, Lincare is a 

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Case 3:14-cv-00836-MO Document 31 Filed 04/16/15 Page 1 of 18
Florida citizen (docket #1, ¶¶ 4–5), and Ramirez seeks over $75,000.00 in damages. Complaint, 

¶ 21(a)–(b). 

Lincare has filed a Motion for Summary Judgment (docket #16) against all claims. For 

the reasons that follow, Lincare’s motion should be granted as to the Second Claim and

otherwise denied.

UNDISPUTED FACTS

Lincare’s primary business is the delivery of home medical equipment and oxygen. 

Complaint, ¶ 1. Ramirez began working in September 2012 as a driver and service 

representative at Lincare’s Newport Center in Newport, Oregon. Ramirez Decl. (docket #23), 

¶ 1. 0F

1

 He used his Commercial Driver’s License (“CDL”) to drive Lincare vehicles along the 

Oregon coast to deliver, set up, and service durable medical equipment and liquid oxygen. Id, 

¶¶ 1, 2. According to the Area Manager, James Taylor (“Taylor”), Ramirez was a “good 

employee.” Duckworth Decl. (docket #17), Ex. 21 (“Taylor Depo.”), pp. 6, 14, 48. His other 

supervisors, Kelli Preddy (“Preddy”), Center Manager of the Newport Center effective March 1, 

2014, and her predecessor, Kim Mezzenga (“Mezzenga”), found Ramirez to be a good, reliable, 

and competent employee during the relevant time periods. Id, Ex. 19 (“Mezzenga Depo.”), 

pp. 27-28 & Ex. 20 (“Preddy Depo.”), pp. 13-15, 28-29.

Lincare provided Ramirez with a Safety and Regulatory Manual. Duckworth Decl., 

Ex. 15; Ramirez Depo., pp. 51–52. In relevant part, that Manual summarizes the on-duty driving 

time limits in the Federal Motor Carrier Safety Regulations, 49 CFR §§ 395.0–395.16, as 

follows:

1 The parties have submitted documents with various attachments. Citations to declarations and depositions are identified by the 

last name of the declarant or deponent and citations are to the paragraph(s) of the declaration or the page(s) of the deposition 

transcript.

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Case 3:14-cv-00836-MO Document 31 Filed 04/16/15 Page 2 of 18
1. A maximum of 11 cumulative hours of driving, after which 

drivers must have at least 10 consecutive hours off-duty.

2. A maximum period on duty of 14 hours, after which drivers 

must have at least 10 consecutive hours off-duty. Drivers may 

extend the 14-hour on-duty period by 2 additional hours if they:

> Are released from duty at the normal work reporting location for 

the previous 5 duty tours, AND

> Return to the normal work reporting location and are released

from duty within 16 hours, AND

> Have not used this exception in the previous 7 days, except 

following a 34-hour restart of a 7 or 8 day period.

Duckworth Decl., Ex. 15, p. 10. 

These limits are commonly referred to as the 11-hour driving rule, 14-hour duty rule, and 

16-hour exception. The Manual defines “driving time” as “[a]ll time spent at the driving controls 

of a commercial motor vehicle in operation.” Id, p. LIN000638. “On-duty time” is defined as 

“[a]ll time from the time a driver begins to work or is required to be in readiness to work until 

the time he/she is relieved from work and all responsibility for performing work.” Id. A “Note” 

at the bottom of this same page adds: “‘On call’ drivers are only ‘on duty’ when called.” Id. It

is the responsibility of the driver holding a CDL to be aware of these regulations and “to reach 

out” to a supervisor at Lincare if the driver believes he would be violating the applicable safety 

regulations. Duckworth Decl., Ex. 4, p. LIN000256; Taylor Depo., pp. 34-35, 37. 

Ramirez understood that it was his responsibility to know the vehicle safety policies 

applicable to his position. Ramirez Depo., p. 27. He understood the policy to mean that he 

could not work more than 14 hours from the start of his day, which allowed 11 hours of “driving 

time” and three hours for other activities, such as office work. Id ̧ p. 57. Ramirez also 

understood “driving time” to be the period when he started his route to the time that he finished 

his day. Id, p. 61. However, he was uncertain whether “driving time” included the time he spent 

on breaks or at lunch during the day. Id, p. 62.

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In about December 2013, Ramirez became concerned that he was asked to drive more 

hours and that his shifts were longer than permitted by the safety regulations governing 

commercial drivers. Ramirez Decl., ¶ 3. He and his co-worker, Nygel Hydrick (“Hydrick”), 

sought clarification from their former Center Manager, Chris Scott (“Scott”), about driving time 

and the 11-hour driving rule. Ramirez Decpo., pp. 62–63, 65. However, “[i]t wasn’t clear what 

[Scott] had said,” and he and Hydrick “always had questions on that . . . because it’s confusing, 

even in the handbook that they give you to study for the CDL.” Id, pp. 63–64. 

By early 2014, Lincare was asking its drivers to drive longer hours apparently because it 

was “losing customers and [drivers] were expected to try to get new accounts.” Id, p. 54. 

Ramirez was driving long hours and occasionally needed to pull over to the side of the road on 

his shifts because he was so tired. Ramirez Decl., ¶ 7. Due to his concern, Ramirez contacted 

the Oregon Highway Patrol to clarify exactly what the safety regulations required. Id, ¶ 5. 

Specifically, he wanted to determine if his current driving schedule violated his CDL. Id. 

Highway Patrol referred him to Bonnie Pierovich (“Pierovich”) in the Motor Carrier

Transportation Division for the Oregon Department of Transportation (“ODOT”). Id, ¶¶ 5-6. 

Ramirez specifically asked Pierovich about the maximum number of hours that he was allowed 

to drive in a single shift and about the maximum length of any given shift in which he was

driving. Id, ¶ 6. Pierovich said that when Ramirez’s vehicle was placarded, he had to be off the 

road 14 hours after the start of his day. Ramirez Depo., p. 72. 

After speaking with Pierovich, Ramirez believed that his shifts were routinely in excess 

of the maximum allowable limits. Id. Together with Hydrick, he brought his concerns to

Mezzenga, an interim Center Manager at the Newport Center and one of his supervisors at the 

time. Id, p. 71; Mezzenga Depo., pp. 7, 32, 39. Although he had previously been a CDL driver, 

4 – FINDINGS AND RECOMMENDATION

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Mezzenga apparently never received training from Lincare about CDL driving limits and 

referred Ramirez and Hydrick to Taylor because he was “in charge.” Mezzenga Depo., pp. 40-

41, 44. Mezzenga also informed Taylor of Ramirez’s safety report. Id, pp. 45–46. 

On February 14, 2014, Ramirez made a second safety complaint to Lincare. Id, ¶¶ 9-11. 

That day, Ramirez started his shift at 5:58 a.m. Taylor Decl. (docket #28), Ex. F. After 

returning to the office in Newport around 5:00 p.m., Preddy informed Ramirez that two more 

medical equipment set-ups needed to be done that day in Tillamook and Yachats. Ramirez

Decl., ¶ 9. Ramirez estimated, based on his experience, that the drive from Newport to Yachats 

would take approximately 40 minutes, the set-up would take approximately one hour, and the 

drive from Yachats to Tillamook would take approximately two hours and 40 minutes. Id, ¶ 10. 

After completing another one-hour set-up in Tillamook, Ramirez would have to drive back to 

Newport which would have taken another one and a half hours. Id. In total, had Ramirez agreed 

to complete both set-ups as he was asked to do, he calculated that he would have had to work 

approximately 18 hours that day. Id. In addition, Ramirez was scheduled to be on-call that 

evening. Id, ¶ 9.

When Preddy told him he had to drive these shifts, Ramirez informed her that he could 

not do both set-ups without violating the 11-hour driving rule and the 14-hour duty rule. Id,

¶ 11; Ramirez Depo., p. 92. Preddy understood that Ramirez refused to drive because he 

believed he would be violating the law. Preddy Depo., p. 48. Preddy had never heard of 

“anything like this” and wanted to know if Ramirez was trying to be funny. Id, p. 52. Preddy 

initially told Ramirez to “stop kidding around,” but after realizing that he was not joking, she

insisted that he complete the set-ups because the customers were counting on their oxygen. Id, 

p. 92; Ramirez Decl., ¶ 11. 

5 – FINDINGS AND RECOMMENDATION

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Preddy then called Taylor who, in turn, called Ramirez. Id, ¶ 12. Ramirez attempted to 

explain to Taylor that he could not drive to both Yachats and Tillamook without violating the 

safety regulations. Id. In response, Taylor stressed that Lincare drivers “don’t deliver widgets” 

and questioned whether the job was really meant for Ramirez. Id; Taylor Depo., pp. 41-43. He 

asked Ramirez why he was the “only one who had a problem with driving.” Ramirez Decl., 

¶ 12; Ramirez Depo., p. 96. Taylor and Ramirez also exchanged some text messages that 

evening in which Ramirez reiterated that he wanted to keep his job, but could not be on duty for 

as many consecutive hours as Lincare was demanding. Duckworth Decl., Ex. 17. Taylor 

apologized, but again stated, “We don’t deliver ‘widgets’. . . . We are about patient care and 

need to have that focus.” Id, p. 2. Taylor tried to explain that there was a 16-hour exception to 

the 14-hour duty rule. Id. 

 Ramirez agreed to make the delivery in Yachats, but not in Tillamook. Preddy Depo., 

p. 48. He also remained on-call that night after he returned from Yachats. Id, p. 62. Later, 

Taylor learned that he was wrong about Ramirez’s starting time and that Ramirez would have 

violated the 11-hour driving rule had he also driven to Tillamook. Taylor Depo., pp. 45-46.

After February 14, 2014, Preddy never took the time to understand the regulations nor to 

sit down with Ramirez to go over the regulations and his safety complaint. Preddy Depo., 

pp. 63-65. Taylor discussed the safety complaint with Ramirez approximately one week later for 

“just a few minutes.” Taylor Depo., pp. 49-51. Because Ramirez was concerned about

retaliation, he decided not to say anything further to his supervisors. Ramirez Decl., ¶ 16. He 

thought about reporting to someone in human resources or higher management, but never did 

because he was becoming disillusioned with Lincare. Ramirez Depo., pp. 102-03. 

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After making his safety complaint on February 14, Ramirez understood that his job was

threatened. Ramirez Decl., ¶ 12. He also was ignored, not informed of changes to his schedule, 

and generally felt that he was treated with less respect and with anger or frustration by Preddy 

and Taylor. Id, ¶¶ 13-15. Ramirez felt that his supervisors thought he was simply uncooperative 

and were trying to force him to quit. Id. Ramirez asked Preddy if she knew whether Taylor was 

upset with him. Id, ¶ 15; Preddy Depo., p. 68. Preddy told him that Taylor was “pissed” with 

him for refusing to drive. Ramirez Decl., ¶ 15.

Ramirez continued to be given schedules requiring him to drive in excess of the 14-hour 

duty rule. Id, ¶ 16. He continued to feel excluded at work until his termination. Id. 

Beginning on March 3, 2014, Ramirez began to suffer from health problems, including 

dizziness and disorientation, which made it difficult for him to work. Id, ¶ 17. On Monday,

March 10, he called Lincare and reported that he had seen a doctor that morning and was not 

cleared to work, but that he would provide an update after his next appointment on March 13, 

2014. Id. Unbeknownst to Ramirez, Lincare put him on a medical leave of absence, effective 

March 10, 2014. Id, ¶ 19; McClendon Decl., Ex. D, p. 2.

Unwilling to violate the safety driving regulations and feeling excluded at work, Ramirez 

called Preddy on March 12, 2014, to discuss giving his two-week notice after his health issues 

resolved and he returned to work. Ramirez Decl., ¶ 18. Preddy “seemed excited.” Id. Believing

that Ramirez had given his two-week notice of his resignation, she asked Taylor what to do. 

Preddy Depo., pp. 73–75; Taylor Depo., p. 22. Taylor directed Preddy to Leslie de Palma (“de 

Palma”), Regional Administrative Assistant, to “make it happen.” Taylor Depo., pp. 22-24. 

Later that day, Preddy called Ramirez back, stating “this is a good thing,” and explained that 

Lincare would not require a two-week notice, accepted his resignation, and considered his 

7 – FINDINGS AND RECOMMENDATION

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employment to have ended on March 12, 2014. Preddy Depo., pp. 73-74; Ramirez Decl., ¶ 18; 

Ramirez Depo., p. 131; Preddy Depo., p. 74. Because Ramirez had anticipated working a few

more weeks and had not actually resigned, he texted Preddy the next day for clarification.

Duckworth Decl., Ex. 17. Preddy told Ramirez that Lincare had “termed” him. Id. 

On March 7, 2014, Ramirez had a balance of negative16.00 hours of vacation. De Palma

Decl. (docket #18), ¶ 5 & Ex. E. Pursuant to Lincare policy, Ramirez also accrued 18.48 hours 

of vacation in 2014, which is calculated by the number of pay periods (6) times 3.08 hours of 

paid vacation for each full pay period worked. Id; Duckworth Decl., Ex. 6, p. 7. As a result, 

Ramirez received pay for 2.48 hours of vacation in his final paycheck. De Palma Decl., ¶ 5 &

Ex. E. 

STANDARDS

Summary judgment is appropriate when there is no genuine issue as to any material fact 

and the moving party is entitled to a judgment as a matter of law. FRCP 56(a). The initial 

burden is on the moving party to point out the absence of any genuine issue of material fact. 

Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the 

production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. 

Catrett, 477 US 317, 323 (1986). On a motion for summary judgment, the court “draws all 

justifiable inferences in favor of the non-moving party.” Fresno Motors, LLC v. Mercedes Benz 

USA, LLC, 771 F3d 1119, 1125 (9th Cir 2014), citing Anderson v. Liberty Lobby, Inc., 477 US 

242, 255 (1986). In employment discrimination cases, “very little evidence” is required to 

survive summary judgment “because the ultimate question is one that can only be resolved 

through a searching inquiry — one that is most appropriately conducted by the factfinder, upon a 

8 – FINDINGS AND RECOMMENDATION

Case 3:14-cv-00836-MO Document 31 Filed 04/16/15 Page 8 of 18
full record.” Schnidrig v. Columbia Mach., Inc., 80 F3d 1406, 1410 (9th Cir 1996) (internal 

quotations, citation omitted), cert. denied, 519 US 927 (1996). 

FINDINGS

I. Evidentiary Objections

Pursuant to LR 56-1(b), both parties included evidentiary objections (titled “Motion to 

Strike”) in their response and reply memoranda. Plaintiff’s Response (docket #22), p. 20; 

Defendant’s Reply (docket #27), p. 12. 

Ramirez seeks to strike portions of his deposition transcript regarding statements made by 

Pierovich, the Truck Inspection Training Coordinator at ODOT, as inadmissible hearsay. 

However, Lincare seeks to admit these statements only as evidence that Ramirez could not have 

believed in good faith that he was driving in violation of the law because he knew the statutory 

time limits. For that limited purpose, these statements are not hearsay and may be considered.

Lincare seeks to strike the following evidence regarding the Oregon Employment 

Department (“OED”) decision to award Ramirez unemployment benefits: (1) paragraph 20 in 

the Ramirez Declaration (docket #23); (2) Exhibit E to the McClendon Declaration (docket #24)

(OED Administrative Decision awarding benefits and finding that Ramirez “was discharged 

because he advised the employer that he intended to quit his job”); and (3) Exhibit F to the 

McClendon Declaration (final order of the Administrative Law Judge finding that Ramirez “did 

not quit his job on March 12, 2014.”). Pursuant to ORS 657.273(2), “the decisions, findings, 

conclusions, final orders and judgments that arise” from administrative unemployment benefits 

hearing are “not admissible as evidence in any other civil action or proceeding other than civil 

actions or proceedings under this chapter or in determination of eligibility for public assistance

9 – FINDINGS AND RECOMMENDATION

Case 3:14-cv-00836-MO Document 31 Filed 04/16/15 Page 9 of 18
or supplemental nutrition assistance.” Ramirez does not dispute that this evidence is 

inadmissible under that statute. Thus, it is stricken and will not be considered.

II. Violation of ORS 654.062 (First Claim)

Pursuant to ORS 654.062(5), a person is prohibited from discriminating or retaliating 

against “any employee” who has “[o]pposed any practice forbidden by,” “[m]ade any complaint

. . . related to,” or “[e]xercised on behalf of the employee, prospective employee or others any 

right afforded by” the Oregon Safe Employment Act. The First Claim alleges that Lincare 

violated ORS 654.062(5) by creating a hostile work environment and ultimately terminating 

Ramirez’s employment in retaliation for Ramirez making safety complaints, opposing unsafe 

work conditions, and exercising his legal rights. 

A. Protected Activity

Ramirez made two reports of safety violations to his supervisors: (1) the first in early 

2014 when he told Mezzenga that his shifts and driving requirements exceeded legal limits; and 

(2) another on February 14, 2014, when he refused a driving assignment that would have caused 

him to exceed his daily driving limits. Lincare seeks summary judgment against the First Claim 

based on the lack of any evidence that Ramirez complained about or opposed any safety 

violations in good faith. 

Ramirez testified that he exceeded the 11-hour driving rule during 50% of his 

employment with Lincare. Ramirez Depo., pp. 53-54. If true, then his safety complaints were 

clearly made in good faith. However, Lincare deems Ramirez’s statement to be unbelievable due 

to the lack of any supporting documentary evidence. Each driver, including Ramirez, filled out a 

daily Delivery & Fill Log. Taylor Depo., p. 37. Yet Ramirez has submitted only one log dated

February 28, 2014, that shows him driving more than 14 hours (15 hours and 36 minutes). 

10 – FINDINGS AND RECOMMENDATION

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McClendon Decl. (docket #24), Ex. G. Lincare has submitted two other logs kept by Ramirez 

that show him driving more than 14 hours dated January 9, 2014 (14 hours and 39 minutes) and 

February 19, 2014 (15 hours and 50 minutes). Duckworth Decl., Ex. 16, pp. 1-2. However, 

Lincare argues that all three logs fall into the 16-hour exception because none occurred within 

seven days of each other. In addition, based on their cursory review of some logs, neither 

Mezzenga nor Taylor found any logs that showed excessive hours or anything out of the 

ordinary. Taylor Depo., pp. 63–64; Mezzenga Depo., pp. 33–37. However neither supervisor 

conducted a thorough investigation. Id. Without a complete review and analysis of all of 

Ramirez’s logs, the record is unclear as to whether and, if so, how often Lincare committed any 

actual safety violations.

In any event, Ramirez need not prove any actual violation of any law, regulation, or 

standard by Lincare. The Oregon Court of Appeals reads the statute to require the protected 

activity to “simply ‘relate’ to the Oregon Safe Employment Act” and allows a plaintiff “to 

establish that he suffered discrimination at his employment because he made a complaint ‘related 

to’ a safe and healthful working condition.” Butler v. State, 138 Or App 190, 201, 909 P2d 163, 

171 (1995). In general, statutory retaliation claims in Oregon require a showing that plaintiff had 

a “good faith belief” that a violation has occurred. See McQuary v. Bel Air Convalescent Home, 

Inc., 69 Or App 107, 111, 684 P2d 21, 24 (1984), citing ORS 654.062(5).

The evidence submitted by Ramirez is sufficient to create a genuine issue of material fact 

that he acted in good faith when making complaints about and opposing perceived safety 

violations. First, Taylor and Preddy asked Ramirez to drive more than 14 hours on February 14, 

2014, and he refused. Taylor now acknowledges that asking Ramirez to drive to both Tillamook 

and Yachats at the end of his shift would have violated the 14-hour duty rule. Taylor Depo., 

11 – FINDINGS AND RECOMMENDATION

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pp. 45-46. That trip, if driven by Ramirez as requested by his supervisors would have occurred 

five days prior to February 19, 2014, on which Ramirez drove 15 hours and 50 minutes. 

Duckworth Decl., Ex. 16, p. 2. 

Although Ramirez was required by his CDL and training, as well as by the terms of his 

employment, to know and understand the driving limits imposed by law, he was confused about 

how much of his work day counted toward the driving limits. Reading the portion of the Manual 

titled “On Duty Driving Time Limits,” Ramirez understood that he had 11 hours of driving time 

and three hours for activities such as office work. Ramirez Depo., pp. 52, 77. However, he

believed driving time to be “from the time that [he] left the shop to start my route to the time that 

[he] returned to the shop to finish my day.” Id, pp. 61-62. He was not sure whether “the hour or 

half hour that [he took] for lunch [was] included [in] that driving time.” Id, p. 62. In 2013, 

Ramirez and Hydrick, sought, but failed to receive, clarification from Scott, the Center Manager

at that time, about driving time and the 11-hour driving rule. Id, pp. 62-63, 65. 

In early 2014, after Lincare asked its drivers to start driving longer hours, Ramirez again 

sought clarification about the driving rules from his new supervisor, Mezzenga, and the ODOT

representative, Pierovich. Id, pp. 54, 71-72. Apparently neither addressed the specific question 

of whether lunch was included in the 11-hour driving rule or whether on-call duty was included 

in the 14-hour duty rule, but Ramirez did learn from Pierovich that driving did not involve office 

time. Id, pp. 72-73. Mezzenga had no answer and referred Ramirez and Hydrick to Taylor. 

Mezzenga Depo., p. 38.

Even though it was Ramirez’s responsibility to understand the rules, his attempts to 

obtain clarification from supervisors and the ODOT were unsuccessful. The Manual, stating 

nothing specific about lunch or other breaks, was arguably unclear. His fellow driver, Hydrick, 

12 – FINDINGS AND RECOMMENDATION

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was uncertain of the rules. Even Mezzenga, a former CDL driver, was unfamiliar with the 

driving regulations. Based on this evidence, a jury could find that, even without documentation 

of an actual violation, Ramirez believed in good faith based on his interpretation, though 

mistaken, of the driving regulations that Lincare repeatedly required him to violate the law. 

Finally, Lincare points out that Ramirez failed to report any alleged violations to 

Pierovich. When Ramirez spoke with Pierovich for clarification about the safety driving 

regulations, he said his logs showed excess driving. Ramirez Depo., p. 73. Pierovich 

encouraged him to send proof of the violations to investigate. Id. Ramirez did not follow up 

with her or send any documents. Id, pp. 73, 84. However, his hesitation does not prove lack of 

good faith. He has explained that he was becoming disillusioned with Lincare (id, pp. 102-03), 

and was concerned about retaliation. Ramirez Decl., ¶ 16. These feelings would have dissuaded 

Ramirez from reporting violations to Pierovich.

For these reasons, a genuine dispute exists as to whether Ramirez engaged in protected 

activity under ORS 654.026(5).

B. Hostile Work Environment

1. Severe and Pervasive Conduct

Ramirez alleges that after February 14, 2014, in retaliation for reporting and opposing 

safety concerns, Taylor and Preddy intentionally created an intolerable work environment to force 

him to quit, and then terminated him before he could do so. Complaint, ¶¶ 8–10. In the context of 

an employment discrimination claim, a hostile work environment requires plaintiffs to prove 

harassing behavior that is “sufficiently severe or pervasive to alter the conditions of [their] 

employment.” Pennsylvania State Police v. Suders, 542 US 129, 133 (2004) (citations omitted). 

13 – FINDINGS AND RECOMMENDATION

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Lincare argues that Taylor and Preddy’s conduct was not sufficiently severe and pervasive to 

create a hostile working environment. 

After February 14, Ramirez no longer felt part of the team and claims that his supervisors 

avoided him because they considered him uncooperative. Ramirez Decl., ¶ 14. They ignored and

excluded him from important information affecting his driving schedule, such as the change in the

provider and location for picking up the liquid oxygen that Ramirez delivered. Id, ¶ 13; Ramirez 

Depo., p. 143. Although no one ever gave him any dirty looks or made disparaging comments, the 

cold shoulder from his supervisors made it clear to him that they were trying to force him to quit. 

Ramirez Decl., ¶ 14; Ramirez Depo., pp. 142-43 (“you don’t have to hear. You can see by body 

language and just facial expressions . . . that things had changed”). When asked if she knew 

whether Taylor was upset with him, Preddy replied that Taylor was “pissed” with him for refusing 

to drive. Ramirez Decl., ¶ 15.

Ramirez argues that the timing of Taylor and Preddy’s harassment accentuates its severity. 

He endured this treatment over one month between the February 14 incident and March 12 when 

he was terminated. During that time, he believed his job was threatened and became concerned 

about Taylor and Preddy retaliating against him. Id, ¶¶ 12, 16. His increasing disillusionment 

prevented him from reporting the safety violations to human resources. Ramirez Depo., pp. 102-

03. Finally, in early March while on sick leave, Ramirez decided that he would quit after he 

returned from leave. Ramirez Decl., ¶ 18. He “was tired of being excluded at work and treated 

with suspicion and [he] was unwilling to drive in violation of the law.” Id.

Based on this evidence, a genuine issue of fact exists as to whether the alleged conduct was 

sufficiently severe and pervasive to constitute a hostile work environment. 

///

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Case 3:14-cv-00836-MO Document 31 Filed 04/16/15 Page 14 of 18
2. Termination

Lincare also argues that Ramirez cannot prove that his termination was motivated by 

retaliation. De Palma made the decision to terminate Ramirez on March 12, 2014, without 

allowing him to return to work during a two-week notice period. De Palma Decl., ¶ 3. She made 

this decision based on an email and discussion with Preddy informing her that Ramirez had 

given his two weeks’ notice, had blood pressure issues, felt his job was too difficult, and was 

going to put his notice of resignation in writing. Id, ¶ 3 & Ex. A. She did not participate in 

Taylor and Preddy’s harassment or know that Ramirez had reported any concerns or made any 

complaints regarding safety, unsafe work conditions, or his belief that he was required to drive in 

excess of the legal driving limits. Id, ¶ 4. 

However, the Ninth Circuit has held “that if a subordinate, in response to a plaintiff’s 

protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an 

adverse employment action, the subordinate’s bias is imputed to the employer if the plaintiff can 

prove that the allegedly independent adverse employment decision was not actually independent 

because the biased subordinate influenced or was involved in the decision or decisionmaking 

process.” Poland v. Chertoff, 494 F3d 1174, 1182 (9th Cir 2007). De Palma’s decision would 

never have been made without Preddy notifying her that Ramirez had resigned. De Palma’s

emails from that day show that she believed and relied on Preddy’s characterization that Ramirez 

resigned during the March 12 telephone call with Preddy. De Palma Decl., Ex. C, pp. 2-3. 

Unlike De Palma, Preddy was aware of Ramirez’s safety complaints and had a motive to retaliate 

after Ramirez refused to drive the extra routes she assigned on February 14. Whether Preddy 

correctly interpreted Ramirez’s intentions or construed his request as a resignation in retaliation

15 – FINDINGS AND RECOMMENDATION

Case 3:14-cv-00836-MO Document 31 Filed 04/16/15 Page 15 of 18
for his report of or opposition to safety violations and prematurely ended his employment is a 

disputed material fact. 

Thus, summary judgment should be denied as to the First Claim.

III. Wage Claim (Second Claim)

Lincare seeks summary judgment against Lincare’s wage claim on the basis that it paid 

Ramirez all vacation time he accrued as of March 12, 2014, his last day of employment. 

Ramirez argues that Lincare wrongfully refused to credit the vacation time he accrued during his 

two-day absence from work (March 10 to 11) and, although not alleged in the Second Claim,

denied him at least two more weeks of paid employment by terminating him early on March 12, 

2014.

According to Lincare’s Employee Handbook, a full-time employee “will earn 

approximately 3.08 hours of paid vacation for each full pay period worked.” Duckworth Decl., 

Ex. 6, p. LIN000269 (emphasis added). Employees are paid biweekly on Friday “with 26 pay 

periods annually” ending on Sunday. Id, p. LIN000273. As of March 9, 2014, the end of a twoweek pay period, Ramirez had accumulated 18.48 hours of vacation (six pay periods multiplied 

by 3.08 hours of paid vacation each), but had taken 16.00 hours of vacation prior to March 7, 

2014. DePalma Decl., ¶ 7 & Ex. D. As of March 9, 2014, his vacation balance was 2.48 hours. 

Id, ¶ 7. In the final paycheck, Lincare paid Ramirez for all of his accrued vacation time through 

March 9, 2014. Id. 

The issue raised by this claim concerns the accrual of vacation time after March 9, 2014. 

When Lincare was absent from work for medical reasons starting March 10, 2014, Lincare 

granted Ramirez an unpaid leave of absence without his knowledge or consent.1F

2

 Id, Ex. C, p. 1. 

2 Apparently Lincare does not have sufficient employees to required compliance with either the FMLA or the 

OFLA.

16 – FINDINGS AND RECOMMENDATION

 

Case 3:14-cv-00836-MO Document 31 Filed 04/16/15 Page 16 of 18
As shown by a series of emails, Lincare reasoned that because he was out on medical leave and 

never “returned” from medical leave, he accrued no vacation time after March 9, 2014. Id, pp. 1-

3. However, according to Lincare’s policies, ending his employment on March 12, before the 

end of the next two-week pay period on March 23, was the reason he accrued no vacation time 

during his absence from work. Without completing that two-week pay period, he could accrue 

no vacation time, even for the two days (March 10 and 11) he was absent immediately prior to 

his last day of employment. Accordingly, given his last day of employment on March 12, 2014, 

Lincare paid Ramirez all accrued vacation time and, thus, did not violate any Oregon wage law. 

Although not pled, Ramirez appears to contend if he had not been terminated early, but 

had been allowed to return to work, give his two-week notice and work during that time, he 

would have earned additional wages and accrued more vacation time by completing another pay 

period. However, that contention is more properly characterized as a claim for damages arising 

from his allegedly unlawful termination alleged in the First Claim. That contention cannot 

support a claim for failing to pay all wages earned and unpaid at the time of termination as 

required by ORS 652.140(1) because those wages were not earned as of March 12, 2014. 

Therefore, Lincare should be granted summary judgment against the Second Claim.

III. Punitive Damages (Third Claim)

The Third Claim is not a separate claim, but merely a notice that Ramirez may amend his 

Complaint to add a claim for punitive damages. Therefore, it is not subject to summary 

judgment at this juncture.

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17 – FINDINGS AND RECOMMENDATION

Case 3:14-cv-00836-MO Document 31 Filed 04/16/15 Page 17 of 18
RECOMMENDATION

For the reasons stated above, Lincare’s Motion for Summary Judgment (docket #16) 

should be GRANTED against the Second Claim and otherwise DENIED. 

SCHEDULING ORDER

These Findings and Recommendation will be referred to a district judge. Objections, if 

any, are due Monday, May 04, 2015. If no objections are filed, then the Findings and 

Recommendation will go under advisement on that date.

If objections are filed, then a response is due within 14 days after being served with a 

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings 

and Recommendation will go under advisement.

DATED April 16, 2015.

s/ Janice M. Stewart

Janice M. Stewart

 United States Magistrate Judge

18 – FINDINGS AND RECOMMENDATION

Case 3:14-cv-00836-MO Document 31 Filed 04/16/15 Page 18 of 18