1 - OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOHNNY DAVIS, IV, 

No. 3:14-cv-01389-HZ

Plaintiff,

OPINION & ORDER

v.

CON-WAY FREIGHT INC., 

CON-WAY INC., CON-WAY 

WESTERN EXPRESS, 

Defendants.

Charese A. Rohny

CHARESE ROHNY LAW OFFICES

1515 S.W. Fifth Ave., Suite 1010

Portland, OR 97201

Mark Gillis McDougal

KAFOURY & MCDOUGAL

411 S.W. Second Ave., Suite 200

Portland, OR 97204

Attorneys for Plaintiff

Margaret S. Fonberg

Paul C. Buchanan

BUCHANAN ANGELI ALTSCHUL SULLIVAN, LLP

321 S.W. Fourth Ave., Suite 600

Portland, OR 97204

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HERNÁNDEZ, District Judge:

Plaintiff Johnny Davis brings this employment discrimination action against his former 

employer, Defendant Con-Way Freight, Inc.1 Plaintiff claims that Defendant discriminated 

against him because of his perceived or actual disability, in violation of ORS 659A.112. In 

addition, Plaintiff brings a claim of wrongful discharge, alleging that he was terminated for 

invoking his right to health care benefits. 

Defendant moves for summary judgment on both claims. Defendant asserts that Plaintiff 

was terminated for failing to report damage to a company trailer, a legitimate and nondiscriminatory reason. In addition, Defendant argues that Plaintiff’s wrongful discharge claim is 

preempted by ERISA. Finally, Defendant asks for an award of attorney’s fees, contending that 

Plaintiff’s claims are “frivolous, unreasonable, or without foundation.” See ORS 659A.885(1). 

The Court heard oral argument on Defendant’s motion on August 31, 2015. For the 

reasons that follow, the Court grants Defendant’s motion for summary judgment. However, the 

Court denies Defendant’s request for attorney’s fees.

BACKGROUND

Plaintiff worked as a truck driver and sales representative for Defendant from July, 1995 

through his termination in November of 2012. Second Amended Complaint (“SAC”) ¶¶ 5, 21;

ECF 29. Plaintiff received positive performance reviews throughout his 17 years as Defendant’s 

employee. Id. at ¶ 12. He also received awards—two state truck-driving championships and a 

 1 Defendants contend that Con-Way Freight, Inc. is the only proper defendant in this case because the 

other entities were not Plaintiff’s employer during the period at issue. Defendants ask the Court, in the 

event that summary judgment is not granted to Defendants on the merits of all claims, to grant summary 

judgment for all defendants except Con-Way Freight, Inc. Plaintiff does not respond to this argument; 

therefore, the Court assumes that Plaintiff concedes that Con-Way Freight, Inc. is the only proper 

defendant. 

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safety award for ten years of having no preventable accidents. Rohny Decl. Ex. CC at 141:25-

142:23, ECF 47.

I. Plaintiff’s alleged disability

In 2004, Plaintiff was diagnosed with chronic myeloid leukemia. SAC at ¶ 6. He gave 

notice to Defendant by submitting numerous doctor notes. Id. Plaintiff was placed on short-term 

disability for six months in 2004 while undergoing cancer treatment. Id. at ¶ 7. Since then, 

Plaintiff’s condition has been at times in remission and episodic. Id. at ¶ 8. Even though 

Plaintiff’s cancer is controlled, he continues to have cancer cells in his body and he requires 

ongoing care and treatment. Davis Decl. ¶ 2, ECF 48. Plaintiff was prescribed Gleevec, which 

costs approximately $80,000 per year in addition to accompanying medical testing. Id. at ¶ 9.

Plaintiff’s chronic myeloid leukemia and the expense of his treatment were common 

knowledge among his co-workers and managers. Rohny Decl. Ex. Z at 137:3-138:19, ECF 47; 

Mays Decl. ¶ 9, ECF 45. Specifically, the following managers knew that Plaintiff had leukemia 

or was a cancer survivor: Clackamas Service Center Manager Jack Baranowski, Freight 

Operations Manager Aaron Macy, Personnel Supervisor Steve Johnson, and Regional Director of 

Operations Mark Gantenbein. Rohny Decl. Ex. AA at 70:14-72:4, ECF 47; Rohny Decl. Ex. BB

at 40:11-41:9, ECF 47; Rohny Decl. Ex. CC at 12:22-13:5, ECF 47; Rohny Decl. Ex. DD 8:6-

8:9, ECF 47. Sometimes, Plaintiff discussed his health issues with Dr. Bud, a “wellness coach” 

Defendant hired to “deliver Con-way’s messages on health and wellness and facilitate Conway’s wellness program.” Davis Decl. ¶ 3, ECF 48. In addition, Plaintiff was “known for being 

vocal, boisterous, and speaking his mind about his cancer and health insurance.” Mays Decl. ¶ 9, 

ECF 45.

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On or about September 14, 2012, Plaintiff learned that he had lost his major molecular 

response to the Gleevec medication, which could mean that leukemia cells mutated, the leukemia 

could return, or Plaintiff would need a new drug therapy. Id. at ¶ 15. During the fall of 2012, 

Plaintiff volunteered to do extra shifts on the weekend in order to afford his increasing health 

insurance premiums and costs. Id. at ¶ 17.

II. “Regarded as disabled”

On November 12, 2012, Plaintiff was sent home from work following an emotional 

interaction with one of Plaintiff’s managers, Freight Operations Supervisor Dean Pierce. Rohny 

Decl. Ex. L, ECF 47. Plaintiff contends Defendant regarded Plaintiff as disabled when Mr. 

Pierce determined that Plaintiff was “not fit to drive or work because of [Plaintiff’s] mental or 

physical health condition.” SAC ¶ 30.

III. Defendant’s “culture of health and wellness”

Defendant uses a self-insured group health plan for its employees.2 Hart Dep. at 9:12-

9:16, ECF 51-1. In 2011 and 2012, Defendant’s health care costs were rising. Id. at 9:15-9:16.

After the Affordable Care Act passed, Plaintiff heard multiple discussions from Defendant’s 

Human Resources Department employees and managers about health insurance, frustration with 

rising health care costs, and attempts to contain Defendant’s healthcare costs. Davis Decl. ¶ 7, 

ECF 48. Frequently, these discussions occurred during daily driver meetings. Id. Plaintiff vocally 

opposed any reduction in employee benefits or rise in premiums. Id. at ¶ 8. Plaintiff raised 

concerns about being able to afford medication and treatment for his chronic myeloid leukemia if 

costs continued to increase and benefits decreased. Id.

 2 Defendant pays for its employees’ health care directly rather than paying an insurance company. SAC ¶ 

11. Con-way, Inc. acts as the health plan sponsor and an administrative committee made up of Con-way 

management acts as the health plan administrator. Hart Dep. at 10:17-11:17, 12-17-20; ECF 51-1.

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Defendant implemented various initiatives designed to promote employee health and

lower Defendant’s health care costs, including distributing brochures about healthy lifestyles, 

requiring employees to watch movies about getting healthy, and bringing in Dr. Bud to speak to 

Defendant’s drivers. Id. at ¶¶ 3, 12, 13. Defendant’s focus on health, wellness, and the cost of 

health care caused many employees to openly discuss the fact that Defendant was having 

difficulty paying high medical bills. Mays Decl. ¶ 15, ECF 45.

On or about October 29, 2012, open enrollment began for 2013 health insurance for 

Defendant’s employees. SAC ¶ 14. During the open enrollment period, Defendant “bombarded” 

employees with information about Defendant’s health insurance plan, its rising healthcare costs, 

and the need to complete blood or other lab work and submit it along with a health assessment. 

Davis Decl. ¶ 14, ECF 48. Defendant’s employees received a substantial financial incentive to 

get a health screening, complete a health assessment, and complete open enrollment by 

November 20, 2012. Id.

IV. Defendant’s Damage Reporting Policy

Defendant requires its drivers to perform both pre-trip and post-trip inspections of the 

vehicles they use. Davis Dep. at 34:10-36:12, 63:13-22; ECF 40-6. Drivers are required to report 

any damage on their Driver Vehicle Inspection Report (DVIR). Id. Defendant implemented these 

requirements in order to comply with federal Department of Transportation regulations. Huner 

Dep. at 152:2-11, ECF 40-9. 

Under Defendant’s Policy 541, failure to report damage or an accident is grounds for 

termination. Id. at 148:8-159:11. Policy 541 states:

The following list of work and conduct standards is not meant to be all-inclusive, but is 

representative of unacceptable performance and behavior which may be subject to 

discipline up to and including termination.

* * *

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Failure to Report an Accident, Damage to Company/Other’s Property or Other 

Incidents to the Company. For example, failure to report a dropped trailer, vehicular 

crashes, damage to company property such as vehicles, fences, forklifts, trailers, etc., will 

result in termination of employment. 

Withrow Decl. Att. A, ECF 38-1 (emphasis in original). 

The requirements of Policy 541 were understood by Plaintiff. Davis Dep. at 35:10-36:12, 

56:8, 63:13-64:15; ECF 40-6. Plaintiff also understood that if a supervisor is present when an 

employee notes damage to company property, the proper protocol is to report the damage to the 

supervisor and have the supervisor sign the DVIR. Id. at 36:4-9. If there is nobody at the terminal 

at the time the damage is noted, the policy calls for the employee to document the damage and 

write “DT” next to it, which means “dark terminal.” Id. at 36:10-12.

V. Plaintiff’s Failure to Report Damage

On Sunday, November 4, 2012, Plaintiff did a “line haul” (also called a “line run”)

between Defendant’s Clackamas and Medford terminals. Davis Decl. ¶ 18, ECF 48. A line haul 

is a long-distance trip which, in this case, involved taking loaded truck trailers from the 

Clackamas facility, dropping them off at the Medford terminal, and then picking up designated 

trailers in Medford and bringing them back to the Clackamas facility. Baranowski Decl. ¶ 8, ECF 

39. Plaintiff forgot the key to the Medford terminal; therefore, he called his manager Mr. 

Baranowski, who called the Medford manager, Sean Umina. Davis Decl. Ex. RR, ECF 48. Mr. 

Umina went to the Medford terminal and let Plaintiff inside. Rohny Decl. Ex. EE at 6:15-7:9, 

ECF 47. 

Plaintiff conducted a pre-trip inspection of the two trailers he picked up to take back to

the Clackamas terminal. Davis Decl. ¶ 18, ECF 48. Plaintiff noticed existing damage on a corner 

panel of one of the trailers. Id. Plaintiff described seeing the following damage: “sheet metal was 

torn off and there was [sic] scrapes and gauges on side.” Davis Decl. Ex. RR at 2, ECF 48. 

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Plaintiff testified that the damage was “significant.” Davis Dep. at 226:19, ECF 40-6. However, 

Plaintiff testified that he did not have an accident or otherwise cause the damage to the corner 

panel. Id. In addition, Plaintiff declares that “at no point did any Con-way manager or employee 

tell me that they believed that I had had an accident or otherwise caused the damage to the 

trailer.” Davis Decl. ¶ 23, ECF 48. Defendant offers no evidence or testimony to the contrary. 

Despite noticing damage to one of the trailers, Plaintiff failed to make any note of the 

damage in his DVIR. Id. at ¶ 18. Instead, Plaintiff noted that “everything was okay.” Davis Dep. 

at 51:2, ECF 40-6. Plaintiff testified that he forgot to mention the damage to Mr. Umina or have 

Mr. Umina sign off to acknowledge the damage, as required. Id. at 53:5-13.

Plaintiff drove the trailers, included the damaged one, back to Portland. Davis Decl. Ex. 

RR, ECF 48. When he arrived in Portland, Plaintiff performed his post-trip inspection. Davis 

Dep. at 250:20-25, ECF 40-6. Plaintiff saw the damage again. Id. Plaintiff testified that he 

thought to himself, “I need to tell them when I get to work tomorrow.” Id. at 251:3-4. However, 

Plaintiff also testified that he chose not to report the damage at that point because “it was 

irrelevant. . . if you find damage, you’re supposed to write it up where you found the damage.” 

Id. at 68:6-14. Plaintiff testified that he knew at that point he would be in trouble for not 

reporting the damage when he was supposed to. Id. Plaintiff dropped the trailers at the Portland 

terminal and went home. Davis Decl. Ex. RR, ECF 48.

The next morning, on November 5, 2012, Plaintiff arrived at work at 5:00 a.m. and 

attended a morning meeting with Freight Operations Supervisor Dean Pierce, his dispatch 

supervisor. Id. at 75:20, 253:1-25. Plaintiff did not report the damage. Id. at 254:14-19. 

Hours later, Freight Operations Supervisor Aaron Macy approached Plaintiff with photos 

of the trailer damage. Id. at ¶ 19. Plaintiff explained that he had forgotten to make a note of the 

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damage in his DVIR and that he had not caused the damage. Id. The same day, Clackamas 

Service Center Manager Jake Baranowski and Regional Safety Supervisor Jeff Turner asked 

Plaintiff to fill out an accident report. Davis Decl. ¶ 20, ECF 48.

VI. Defendant’s Investigation and Termination of Plaintiff

From November 5, 2012 to November 12, 2012, Plaintiff continued to work for 

Defendant. Id. at ¶ 21. During that time, Mr. Baranowski asked Mr. Umina to look at prior 

DVIRs to see whether the damage had been reported by previous drivers of the damaged trailer. 

Baranowski Decl. ¶ 12, ECF 39. Mr. Baranowski found no indication that there was any damage 

to the trailer before it was assigned to Plaintiff. Id. “Within three days of the issue arising,” Mr. 

Baranowski reported the matter to Human Resources Generalist Kathryn Withrow, who is based 

out of Denver, Colorado, and is responsible for Defendant’s Western Area, including Oregon. 

Id.; Withrow Decl. ¶ 1, ECF 38. 

On November 12, 2012, at approximately 6:00 a.m., Plaintiff had a verbal altercation 

with Mr. Pierce about how long it was taking Plaintiff to complete his pre-trip inspection. Rohny 

Decl. Ex. L, ECF 47. Plaintiff felt overwhelmed by emotion, as if he were having a panic attack. 

Davis Decl. ¶ 25, ECF 48. Plaintiff spoke with a coworker, Jolanda Terrell. Rohny Decl. Ex. K, 

ECF 47. He then went to a classroom to take a break and calm down. Id. at ¶ 26. In the 

classroom, Plaintiff spoke with a coworker, Marc Kamm, and explained that he was stressed out 

about the unreported damage incident, possible discipline, and the fear of not being able to afford 

his cancer treatment. Id. Mr. Pierce found Plaintiff in the classroom, told Plaintiff he was “not in 

any shape to drive or work,” and sent him home without pay. Rohny Decl. Ex. L, ECF 47. When 

Plaintiff arrived at home at approximately 8:30 a.m., he called Mr. Pierce and apologized. Davis 

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Decl. ¶ 28, ECF 48. At approximately 3:30 p.m., Personnel Supervisor Steve Johnson called 

Plaintiff and told him that he was “being placed out of service.” Id.

The same day, November 12, 2012, Mr. Pierce, Ms. Terrell, and Mr. Kamm3 documented 

their interactions with Plaintiff. Rohny Decl. Exs. K, L, M; ECF 48. According to Mr. Johnson, 

he spoke with Ms. Withrow, Human Resources Generalist, about the incident between Plaintiff 

and Mr. Pierce. Rohny Decl. Ex. CC at 30:13-35:22, ECF 47. Mr. Johnson testified that Ms. 

Withrow directed him to send her the statements of Mr. Pierce, Ms. Terrell, and Mr. Kamm 

along with the other documents Mr. Johnson possessed related to the investigation of Plaintiff’s 

failure to report the damage to the trailer. Id.

The decision to terminate a driver is made by Defendant’s Human Resources

Department, not by local service center managers. Withrow Decl. ¶ 5, ECF 38. Ms. Withrow had 

the authority to recommend termination and Kevin Huner, Director of Human Resources for 

Con-way Freight’s Western Area, had the authority to make the termination decision. Id.

On November 15, 2012, Ms. Withrow recommended to Mr. Huner that Plaintiff be 

terminated. Id. at ¶ 6. The same day, November 15, 2012, Mr. Huner authorized Plaintiff’s 

termination. Id. Ms. Withrow declared that she recommended termination pursuant to Policy 541 

and that “this was not a difficult investigation” because Plaintiff admitted that he failed to report 

the trailer damage. Id. Ms. Withrow declared that Plaintiff’s emotional conduct on November 12, 

2012 was “inconsequential” to her recommendation and that she does not even remember 

considering Plaintiff’s emotional conduct in making her decision. Id. at ¶ 7. On November 16, 

 3 Mr. Kamm declares that he wrote a handwritten statement. Kamm Decl. ¶¶ 9-13, ECF 43. A typewritten 

statement that was purportedly written by Mr. Kamm was submitted to Ms. Withrow on his behalf. Id.

Neither party has an explanation for this mysteriously created typewritten statement and Mr. Kamm 

declares that portions of it do not reflect what he wrote in his handwritten statement. Id.

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2012, Ms. Withrow notified Plaintiff of his termination and told him that all of his medical 

benefits would cease at midnight of that day. Id. at ¶ 9; Davis Decl. ¶ 29, ECF 48.

VII. Employee Termination Review Board Proceedings

On November 19, 2012, Plaintiff sent a letter to Defendant’s Employee Termination 

Review Board (ETRB), requesting an appeal and review of his termination. Davis Decl. Ex. QQ, 

ECF 48. In his letter, Plaintiff wrote: “I am asking you to overturn my termination due to the fact 

that I have been accident free and disciplinary free for many, many years . . . I made a mistake in 

not reporting damage that I saw on a trailer.” Id.

On November 21, 2012, the ETRB conducted a hearing. Davis Decl. ¶ 31, ECF 48. 

Plaintiff read a written statement to the Board, presenting his side of the story. Id. On or about 

November 27 or 28, 2012, Plaintiff received a letter from the ETRB stating that his termination 

was reviewed and upheld on November 21, 2012. Davis Decl. Ex. SS, ECF 48.

STANDARDS

Summary judgment is appropriate if there is no genuine dispute as to any material fact 

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The 

moving party bears the initial responsibility of informing the court of the basis of its motion, and 

identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any,’ which it believes demonstrate the 

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) 

(quoting Fed. R. Civ. P. 56(c)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine 

issue of material fact, the burden then shifts to the nonmoving party to present “specific facts” 

showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927–28 

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(9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the 

pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 

(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).

The substantive law governing a claim determines whether a fact is material. Suever v. 

Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the 

light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d 

1108, 1112 (9th Cir. 2011).

If the factual context makes the nonmoving party’s claim as to the existence of a material 

issue of fact implausible, that party must come forward with more persuasive evidence to support 

his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 587 (1986).

DISCUSSION

Plaintiff brings a claim of disability of discrimination against Defendant. Plaintiff alleges 

that his actual or perceived disability was a substantial factor in Defendant’s decision to 

terminate him. SAC ¶ 32. Plaintiff also brings a claim of wrongful discharge, alleging that he 

was terminated for “exercising an important societal interest and exercising his right to equal 

terms, conditions, and benefits of employment, including invoking his right to health care 

benefits.” Id. Because Plaintiff fails to establish a prima facie case of disability discrimination 

and because Plaintiff’s wrongful discharge claim is preempted by ERISA, the Court grants 

Defendant’s motion for summary judgment on both claims.

I. Disability Discrimination

ORS § 659A.112(a) makes it unlawful for an employer to “discriminate in compensation 

or in terms, conditions, or privileges of employment on the basis of disability.” The Court applies 

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the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

802–04, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973), to claims under Oregon disability law. See Mayo 

v. PCC Structurals, Inc., 795 F.3d 941, 943 (9th Cir. 2015). “Under that framework, an employee 

challenging an adverse employment action has the initial burden of establishing a prima facie 

case of discrimination (or retaliation).” Id. (quoting Curley v. City of North Las Vegas, 772 F.3d 

629, 632 (9th Cir. 2014). “The burden then shifts to the employer to provide a legitimate, 

nondiscriminatory (or nonretaliatory) reason for the adverse employment action.” Id. If the 

employer does so, then the burden shifts back to the employee to prove that the reason given by 

the employer was pretextual.” Id.

In this case, the Court’s analysis begins and ends with Plaintiff’s prima facie case, as he 

fails to make one. “To prevail on an ADA4 claim of unlawful discharge, the plaintiff must 

establish a prima facie case by showing that: (1) he is a disabled person within the meaning of 

the statute; (2) he is a qualified individual with a disability; and (3) he suffered an adverse 

employment action because of his disability.” Id. (internal quotation omitted). 

A. Disabled and “regarded as disabled”

Plaintiff alleges that he is disabled within the meaning of the statute because he has 

chronic myeloid leukemia, which is a physical impairment that substantially limits one or more 

major life activities. SAC ¶ 28. Plaintiff also alleges that Defendant regarded Plaintiff as disabled 

when it determined that Plaintiff was not fit to drive or work on November 12, 2012, because of 

his mental or physical health condition. Id. at ¶ 30.

 4 “The Oregon disability discrimination statute is modeled after the ADA. Accordingly, courts interpret 

[the statute] consistently with the ADA.” Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 n. 1 (9th 

Cir. 2001) (citation omitted); see Or. Rev. Stat. § 659A.139(1) (“659A.103 to 659A.144 shall be 

construed to the extent possible in a manner that is consistent with any similar provisions of the 

[ADA].”).

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Defendant does not challenge either of Plaintiff’s allegations. Therefore, the Court

assumes for the purposes of this motion that Plaintiff establishes that he is disabled or was 

regarded as disabled. 

B. Adverse action because of disability

Defendant contends that Plaintiff cannot establish a prima facie case because the Human 

Resources employees who made the termination decision, Mr. Huner and Ms. Withrow, did not 

know that Plaintiff was disabled or regarded as disabled and, therefore, could not have 

discriminated against him based on a disability.

In order to establish a prima facie case of disability discrimination, a plaintiff must show 

that he was terminated because of his disability. See Mayo, 2015 WL 4529357, at *2. It follows 

that the plaintiff must show that the defendant had knowledge of his disability when making the 

adverse employment decision. However, the plaintiff's disability need not be the sole reason for 

the defendant's actions. Rather, liability attaches when the plaintiff's disability is a “motivating 

factor” in the defendant's adverse employment decision. Arnold v. Pfizer, Inc., 970 F. Supp. 2d 

1106, 1135 (D. Or. 2013); see also Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1065 (9th 

Cir. 2005) (“Therefore, we hold that the ADA outlaws adverse employment decisions motivated, 

even in part, by animus based on a plaintiff's disability . . . —a motivating factor standard.”).

i. Whether Mr. Huner knew Plaintiff was disabled or regarded as disabled 

It is undisputed that Mr. Huner, Director of Human Resources for Con-way Freight’s 

Western Area, was the person with the authority to make a final decision regarding Plaintiff’s 

termination. Withrow Decl. ¶ 5, ECF 38. It is also undisputed that, before Mr. Huner made the 

decision to fire Plaintiff, Mr. Huner was unaware that Plaintiff had cancer. Huner Dep. at 

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129:20-131:21, ECF 40-9. Mr. Huner also had no knowledge of Plaintiff’s emotional breakdown 

after his confrontation with Mr. Pierce on November 12. Id.

ii. Whether Ms. Withrow knew Plaintiff was disabled or regarded as disabled 

As with Mr. Huner, Human Resources Generalist Ms. Withrow did not know that 

Plaintiff was disabled when she made her decision regarding his termination. Ms. Withrow 

testified that she did not know anything about Plaintiff’s medical condition until after the present 

lawsuit was filed. Withrow Decl. ¶ 3, ECF 38; Withrow Dep. at 50:11-19, ECF 40-11.

Plaintiff contends that Ms. Withrow knew that Plaintiff had cancer because, at some point 

before November 20, 2012, 5 Ms. Withrow received a medical document that stated that Plaintiff 

was prescribed “Gleevec, per oncology/hematology.” Rohny Decl. Ex. O at 30, ECF 47.

However, even if Ms. Withrow saw this document before November 15, 2012, Ms. Withrow 

testified that she did not know that Gleevec was a medication for cancer treatment. Rohny Decl. 

Ex GG, 19:8-10, ECF 47. Plaintiff presents no other evidence to make plausible the existence of 

a dispute of material fact as to Ms. Withrow’s knowledge of Plaintiff’s cancer. The Court finds 

that, even viewing the facts in the light most favorable to Plaintiff, there is no basis to draw the 

inference that Ms. Withrow may have known that Plaintiff had cancer when she recommended 

his termination. 

In addition, Plaintiff fails to present any facts from which this Court could draw the 

inference that Ms. Withrow knew that Plaintiff was regarded as disabled and that this knowledge 

 5 The medical document is unrelated to Plaintiff’s cancer treatment. Rohny Decl. Ex. O at 30, ECF 47. 

The document was created because Plaintiff was assaulted in 2009 and, as part of Plaintiff’s vital signs, 

the medical professionals noted that Plaintiff was prescribed Gleevec. Id. There is no other information in 

the document that relates to Plaintiff’s cancer. Id. At one point in Ms. Withrow’s deposition, she testified 

that she did not know when she received the medical document. Withrow Dep. 19:24, ECF 47. Later in 

the deposition, she stated that she received the document approximately three days after Plaintiff was 

terminated. Withrow Dep. 93:7, ECF 55-3. The inconsistency in Ms. Withrow’s testimony does not 

impact this Court’s analysis. 

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was a motivating factor in her decision to recommend his termination. Mr. Johnson testified that 

he discussed Plaintiff’s emotional breakdown with Ms. Withrow on November 12, 2012 and she 

indicated that she had read Mr. Pierce’s email summarizing the incident. Rohny Decl. Ex. CC at

35:18-20, ECF 46. Ms. Withrow declared that Plaintiff’s emotional conduct on November 12, 

2012 was inconsequential to her decision and she did not remember even considering it when 

making her recommendation. Withrow Decl., ECF 48, at ¶ 7.

Plaintiff argued in his briefs and at oral argument that Ms. Withrow possessed documents 

noting his disability or the fact that he was regarded as disabled by November 15, 2012 at the 

latest. It is undisputed that Ms. Withrow, as part of her job duties, created a packet of documents

on November 15, 2012, for the ETRB to consider in conjunction with Plaintiff’s ETRB appeal. 

Rohny Decl. Ex. GG at 11:8-22:10, ECF 47. 

However, a close look at the record indicates that Ms. Withrow recommended 

terminating Plaintiff at 9:43 a.m. on November 15, 2012 in an email to Mr. Huner. Rohny Decl. 

Ex. O at 36, ECF 47. Ms. Withrow received the documents for inclusion in the ETRB packet at 

10:48 a.m. on November 15, 2012. Rohny Decl. Ex. GG at 15-18; Rohny Decl. Ex. M; ECF 47.

Therefore, Ms. Withrow made her recommendation approximately one hour before she received 

all of the documents compiled for the ETRB review. Accordingly, any knowledge that she 

allegedly gained by possessing those documents is irrelevant to this Court’s consideration of 

what Ms. Withrow knew when she recommended termination.

Therefore, Plaintiff’s case rests on the theory that, because Mr. Johnson told Ms. 

Withrow about Plaintiff’s emotional breakdown and because Ms. Withrow read Mr. Pierce’s 

email summarizing the incident, Ms. Withrow knew that Plaintiff was regarded as disabled and 

this was a motivating factor in her decision-making. Once again, even viewing the facts in the 

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light most favorable to Plaintiff, the Court is unable to draw the inference that Plaintiff requests. 

Mr. Pierce’s email does not provide Ms. Withrow with a basis to believe that Plaintiff was

regarded as disabled, nor does it mention Plaintiff’s cancer. There is no evidence to support the 

theory that Ms. Withrow was in any way motivated to fire Plaintiff because he had one 

emotional breakdown, as opposed to the reason for which Plaintiff was already under 

investigation. 

iii. Imputing knowledge of lower level supervisors

Plaintiff argues that, even if Mr. Huner and Ms. Withrow were unaware of Plaintiff’s 

disability, the knowledge of the lower-level supervisors is imputed on to them. However, the law 

does not support Plaintiff’s argument. 

Plaintiff cites Morrow Crane Co. v Affiliated FM Ins. Col., 885 F.2d 612 (9th Cir. 1989)

for the proposition that a lower level management or first line supervisory employee’s 

knowledge of information is imputed to their employer when the information is material or if it is 

their duty to maintain the information. In Morrow Crane, the Ninth Circuit applied longstanding 

agency principles to impute the acts of an agent acting within his apparent authority to the 

principal. Id. at 614. The case is inapplicable to the present case, where the issue is whether a 

lower-level manager’s knowledge of a plaintiff’s disability is imputed onto the employee who 

makes termination decisions. 

In Kimbro v. Atl. Richfield Co., 889 F.2d 869, 875 (9th Cir. 1989), the Ninth Circuit 

Court of Appeals determined that the knowledge by an employee's supervisor of his migraine 

condition could be imputed to management personnel in a failure to provide reasonable 

accommodations case, despite the fact that there was no evidence that the manager who made the 

decision to terminate the plaintiff’s employment had actual knowledge of the condition. Relying 

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on Washington law and traditional agency principles, the court stated that “it is clear that 

[management] is bound by [the supervisor's] knowledge of Kimbro's medical condition [as it was 

clearly established that the supervisor] not only had authority to receive information regarding 

Kimbro's medical condition, but also had a responsibility to disclose the nature and severity of 

[that] condition to ... management.” Id. at 876.

Notably, subsequent cases in the Ninth Circuit and other circuits have distinguished 

Kimbro, a reasonable accommodations case, from discrimination cases such as the present one.

For example, the Eleventh Circuit explained:

First, [Kimbro] was about reasonable accommodations, not discriminatory discharge. 

Second and most important, although ARCO management lacked actual knowledge of 

Kimbro's disability, Kimbro's supervisor was aware of his condition and was responsible, 

under ARCO's own policy, for communicating that information to management. Thus, 

ARCO was essentially arguing that it could avoid liability because its own internal 

policies had broken down. In this sense, Kimbro . . . holds, at most, that when an 

employer designates a supervisor as an employee's contact point for personnel matters 

such as reasonable accommodations, the employer cannot later defend a failure to make 

reasonable accommodations on the ground that the supervisor failed to relate the 

employee's disability to relevant decision-makers within the company. This principle 

plainly has no applicability to a case such as this one where an employee alleges that the 

employer's stated reason for firing her is a pretext for disability discrimination. A 

“pretext” is “a purpose or motive alleged ... in order to cloak [one's] real intention.” 

Webster's Third New International Dictionary 1797 (1993). It simply defies logic to 

argue that [Defendant’s employee’s] “real intention” was to fire [Plaintiff] “because of” a 

disability that [the employee] knew nothing about.

Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1184 (11th Cir. 2005); see also Hedberg v. Ind. Bell 

Tel. Co., Inc., 47 F.3d 928, 932-33 (7th Cir. 1995) (concluding that without evidence that the 

decision-maker had knowledge of the disability, the determination to terminate an employee 

could not have been made “because of that disability,” as required by the ADA); Rodriguez v. 

Mrs. Baird's Bakery, No., 95-50923, 1997 WL 156989, at *3 (5th Cir. Mar. 25, 1997)

(“Rodriguez does not offer summary judgment evidence showing that the supervisor responsible 

for his termination knew about his diabetes. Rodriguez claims that he had informed two other 

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Mrs. Baird's individuals about his condition and contends that their knowledge should be

imputed on the theory of respondeat superior to the supervisor responsible for his termination. 

While respondeat superior is a theory used in ADA cases to impute actions of an employee-agent 

to the employer, it is not proper to equate this with the imputing of knowledge between agents of 

an employer.... When assessing Rodriguez's [ADA] claim, we are concerned with the knowledge 

of the supervisor who was responsible for his termination.”).6

The Court agrees with the analysis in Cordoba, Hedberg, and Rodriguez, and finds that 

Kimbro has no bearing on the present case. Plaintiff was not terminated for illness-related 

behavior or an illness-related inability to perform his job duties. Had he been fired for one of 

those reasons, his supervisors’ knowledge of his cancer would be relevant because the ADA 

mandates reasonable accommodation under these circumstances, and, under traditional agency 

principles, Defendant is assumed to know everything its agents know. However, the conduct 

Plaintiff was fired for does not require a reasonable accommodation under the ADA. He was 

fired for failing to report damage to a company vehicle. This adverse employment decision only 

violated the ADA if it was pretextual, which would necessitate that Ms. Withrow or Mr. Huner 

had actual, not merely constructive, knowledge of Plaintiff's disability or the fact that he was 

regarded as disabled.

iv. Discriminatory recommendation by a subordinate

Plaintiff argues, alternatively, that a defendant is liable under disability law “if a 

discriminatory recommendation made to a decision-maker by a subordinate was a proximate 

 6 The Court acknowledges one case from this District that opined that “there is nothing in Kimbro to 

indicate that its analysis is not equally applicable to an ADA claim for wrongful termination.” James v. 

James River Paper Co., No. CV 94-142-ST, 1995 WL 938383, at *12 (D. Or. Apr. 6, 1995) aff'd, 101 

F.3d 705 (9th Cir. 1996). However, the court in James held that Kimbro would apply where the claim is 

based on a termination caused by a “failure to accommodate,” because the claims go hand in hand. Id.

Here, Plaintiff makes no argument regarding a failure to accommodate. 

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cause of the employment decision, even though there may be multiple proximate causes.” Pl.’s 

Resp. 29 (quoting Staub v. Proctor Hosp., 562 U.S. 411, 419-20 (2011)). According to Plaintiff, 

there is sufficient evidence to infer that the discriminatory actions of managers Mr. Baranowski, 

Mr. Johnson, and Mr. Pierce influenced Ms. Withrow regarding the discipline and termination of 

Plaintiff. In other words, if Plaintiff’s discipline was initiated by biased supervisors and Ms. 

Withrow relied on the supervisor’s reports of Plaintiff’s conduct, then Ms. Withrow’s

recommendation to terminate was influenced by biased subordinates.

In Staub, the plaintiff alleged that his supervisors had hostility to his obligations as a 

military reservist and that their “write-up” influenced the decision of a human resources 

employee to fire him. Id. The Supreme Court in Staub held, in a USERRA case, that “if a 

supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to 

cause an adverse employment action, and if that act is a proximate cause of the ultimate 

employment action, then the employer is liable under USERRA.” Id. at 422 (emphasis in 

original). The Court explained that “[a]n employer's authority to reward, punish, or dismiss is 

often allocated among multiple agents. The one who makes the ultimate decision does so on the 

basis of performance assessments by other supervisors.” Id. at 420.

The Ninth Circuit recently addressed this issue in France v. Johnson, No. 13-15534, 2015 

WL 4604730, at *5 (9th Cir. Aug. 3, 2015). The Court explained that “even if a subordinate 

employee with bias was not the final decisionmaker, the plaintiff can establish a causal link by 

proving that ‘the biased subordinate influenced or was involved in the decision or 

decisionmaking process.’” 494 F.3d at 1182. In France, the plaintiff produced evidence showing 

the biased subordinate’s influence and substantial involvement in hiring decisions, even though 

he was not the final decision-maker on hiring.

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Staub, France, and other cases cited by Plaintiff clearly allege bias on the part of the 

subordinate employee. For example, in Staub, the biased subordinates made derogatory 

comments about the plaintiff’s military service, such as stating that the plaintiff’s service had 

been a “strain on the department” and consisted of “a bunch of smoking and joking and a waste 

of taxpayers’ money.” Staub, 562 U.S. at 414. In France, an age discrimination case, the biased 

subordinate had repeated discussions with the plaintiff about how he should retire and made 

statements about his preference for “young dynamic agents.” Id. at *4. In Shager v. Upjohn Co., 

913 F.2d 398, 406 (7th Cir. 1990), also an age discrimination case, the plaintiff alleged that the 

biased subordinate felt uncomfortable with the older workers under his supervision, set up one of 

them for failure, then brought in a younger worker whom he didn't need, and then fired the older 

worker on trumped-up charges while covering the failures of the inadequate younger worker who 

was his protégé. In McKenna v. City of Philadelphia, 649 F.3d 171 (3d Cir. 2011), Caucasian 

former police officers brought suit against the city under Title VII, alleging that their supervisors 

violated their right to be free from retaliation for opposing racial discrimination in the workplace.

The supervisor had told the plaintiff that if he made an EEOC complaint, that he would make the 

plaintiff’s life “a living nightmare.” Id. at 173. The supervisor also ordered the plaintiff not to 

share his concerns with a higher level supervisor. Id. at 174. The Third Circuit affirmed that 

whether the supervisor’s retaliatory animus against the plaintiff was the cause of his termination 

was properly considered by the jury. Id. at 180.

Here, the evidence Plaintiff presents of bias on the part of subordinate employees Mr. 

Baranowski, Mr. Johnson, or Mr. Pierce pales in comparison to the above cases. Plaintiff 

testified that when Plaintiff discussed the rising cost of health insurance with Mr. Johnson, Mr. 

Johnson made remarks such as: “it’s good that you have medical benefits,” “lucky a guy like you 

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has insurance,” and “isn’t it nice that we have health insurance with how much things cost and 

what [you are] going through.” Rohny Decl. Ex. Z at 147:20-149:2, ECF 47. As evidence of bias, 

Plaintiff declares that Mr. Baranowski, Mr. Johnson, and Mr. Pierce sometimes conducted 

morning driver meetings and that “management and/or human resources would frequently lead 

discussions” about Defendant’s health insurance plan and rising costs of health insurance. Pl. 

Decl., ECF 48, at ¶¶ 6, 7. These statements are a far cry from the biased statements cited in other 

cases. Plaintiff presents no evidence to suggest that Mr. Baranowski, Mr. Johnson, or Mr. Pierce 

knew the cost of his medication to the company7 or harbored any feelings of bias towards

disabled employees, employees with cancer, or employees with high medical costs.

C. Plaintiff fails to establish his prima facie case

In sum, Plaintiff’s case fails because he is unable to establish that the people who made 

the decision to terminate him knew or were motivated by the fact that he was disabled or 

regarded as disabled. 

II. Common Law Wrongful Discharge 

Plaintiff also brings a claim of wrongful discharge, alleging that he “was terminated for 

exercising an important societal interest and exercising his right to equal terms, conditions, and 

benefits of employment, including his right to health care benefits.”

Under Oregon law an employer may discharge an employee at any time for any reason 

unless doing so violates a contractual, statutory, or constitutional requirement. Yeager v. 

Providence Health Sys. Or., 195 Or. App. 134, 140, 96 P.3d 862 (2004). The tort of wrongful 

discharge is a narrow exception to this general rule. See Dew v. City of Scappoose, 208 Or. App. 

121, 140, 145 P.3d 198 (2006). The tort of wrongful discharge was not intended to be a tort of 

 7 In addition, Mr. Baranowski submits a declaration that he never received information about the cost of 

Plaintiff’s health care. Baranowski Decl. ¶ 17, ECF 39.

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general application but rather an interstitial tort to provide a remedy when the conduct in 

question is unacceptable and no other remedy is available. Reddy v. Cascade Gen., Inc., 227 Or.

App. 559, 567, 206 P.3d 1070 (2009) (citation omitted). See also Draper v. Astoria Sch. Dist. 

No. 1C, 995 F. Supp. 1122, 1128 (D. Or. 1998).

“The elements of a wrongful discharge claim are simple: there must be a discharge, and 

that discharge must be ‘wrongful.’” Garmon v. Plaid Pantries, No. 3:12-CV-1554-AC, 2013 WL 

3791433, at *25 (D. Or. July 19, 2013) (citing Moustachetti v. Oregon, 319 Or. 319, 325 (1994). 

Oregon courts have recognized two circumstances that give rise to the common-law tort of 

wrongful discharge: (1) discharge for exercising a job-related right of important public interest 

and (2) discharge for complying with a public duty. Plaintiff argues that his case falls under this 

first category. Examples of the first category include discharge for filing a worker's 

compensation claim, Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (1978), and resisting 

sexual harassment by a supervisor, Holien v. Sears, Roebuck & Co., 298 Or. 76, 689 P.2d 1292 

(1984). Under Oregon law, however, “a wrongful discharge claim is not available to a plaintiff 

who alleges that [he] was discharged in violation of a right in contrast to being discharged for 

pursuing that right.” Larmanger v. Kaiser Found. Health Plan of the Nw., 895 F. Supp. 2d 1033, 

1046 (D. Or. 2012) aff'd, 585 F. App'x 578 (9th Cir. 2014).

As to proving that the discharge was wrongful, the plaintiff must establish a causal 

connection between the discharge and the exercise of his employment related right. Garmon, 

2013 WL 3791433, at *25 (citing Estes v. Lewis and Clark College, 152 Or. App. 372, 381 

(1998) (citing Shockey v. City of Portland, 313 Or. 414, 422–23 (1992)). Establishing “a causal 

connection requires a showing that the employee's protected activity was a substantial factor in 

the motivation to discharge the employee.” Sheppard v. David Evans and Assoc., 694 F.3d 1045, 

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1050 (9th Cir. 2012) (citation and quotation marks omitted). To qualify as a substantial factor, 

“the employer's wrongful purpose must have been a factor that made a difference in the 

discharge decision.” Id. (citation and quotation marks omitted).

Plaintiff argues that his exercise of his right to use the employer-sponsored healthcare 

benefits program constitutes the exercise of a job-related right of important public interest. 

According to Plaintiff, in staff meetings he “exercised an employment-related right by invoking 

[his] right to health care benefits . . . oppos[ing] Con-way’s reducing benefits for its employees 

while passing on more costs to employees, opposing the rise in premiums while coverage got 

worse, and . . . rais[ing] concerns about being able to afford leukemia medications and 

treatment[.]” Davis Decl. ¶ 8, ECF 48. Plaintiff does not allege a causal connection between his 

protected activity and the termination decision, except to say that temporal proximity between 

protected activity and an adverse employment action can constitute sufficient circumstantial 

evidence of retaliation.

Defendant argues that Plaintiff’s claim is preempted by ERISA8

. The Ninth Circuit has 

explained that “ERISA's preemption clause, § 514(a), as set forth in 29 U.S.C. § 1144(a), is to be 

read expansively.” Tingey v. Pixley-Richards W., Inc., 953 F.2d 1124, 1130 (9th Cir. 1992). 

“ERISA preempts state law causes of action that offer remedies for the violation of rights 

expressly guaranteed by ERISA and exclusively enforced by ERISA's civil enforcement 

mechanism, § 502(a), 29 U.S.C. § 1132(a).” Id. (citing Ingersoll-Rand v. McClendon, 498 U.S. 

133 (1990). Therefore, the Ninth Circuit has found that ERISA preempted a plaintiff’s state law 

claims of wrongful termination and disability discrimination based on the allegation that the 

 8 Defendant’s Motion for Summary Judgment, ECF 37, argued that because Plaintiff has an adequate 

statutory remedy for his claim of disability discrimination, he has no viable wrongful discharge tort claim 

as a matter of law. However, Plaintiff responded that invocation of his right to health care, not disability 

discrimination, is the basis for his wrongful discharge claim. Therefore, Defendant introduced its 

preemption argument in its Reply.

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employer did not want to continue to pay the plaintiff’s expensive benefits. Felton v. Unisource 

Corp., 940 F.2d 503, 510 (9th Cir. 1991) (“[W]hen the plaintiff contends that the motivating 

factor behind her termination was the defendant's attempt to evade benefit payments, preemption 

is clear.”); see also Tingey, 953 F.2d at 1131 (plaintiff’s claim that he was fired because his 

employer did not want to pay his benefits was preempted by ERISA); Javansalehi v. BF & 

Associates, Inc., No. 3:10-CV-850-PK, 2012 WL 1566184, at *6 (D. Or. May 2, 2012).

Plaintiff’s wrongful discharge claim is somewhat more nuanced than Felton or Tingey. 

While Plaintiff alleges that he was fired because Defendant did not want to pay his benefits, he

also alleges that he was fired because he invoked his right to health care benefits. SAC ¶ 42.

Plaintiff cites the Public Health Service Act, ERISA and the Internal Revenue Code for the 

proposition that group health plans and health insurance issuers may not discriminate against 

participants, beneficiaries, and individuals in eligibility, benefits, or premiums based on a health 

factor. 42 USC 300gg-4, 29 USC § 1182, 26 USC § 9802. However, there is no allegation here 

that Plaintiff faced discrimination related to the terms of his health insurance coverage and 

Plaintiff presents no evidence to support his theory that he was fired merely for invoking his 

rights to benefits.

It seems clear to the Court that the basis of Plaintiff’s case is his allegation that Defendant 

did not want to employ a person with such expensive healthcare. A claim brought on that basis is 

clearly preempted by ERISA. Furthermore, because Plaintiff fails to show that the people who 

decided to terminate Plaintiff knew about his medical condition or the cost of his health care, 

Plaintiff’s wrongful discharge claim fails because he cannot show a causal connection between 

the invocation of his right to health care benefits and his termination. 

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III. Attorney’s Fees

Defendant requests that the Court award Defendant attorney’s fees and costs because 

Plaintiff’s claims are frivolous, unfounded, or objectively unreasonable. See Hamlin v. Hampton 

Lumber Mills, Inc., 227 Or. App. 165, 168, 205 P.3d 70, 72 (2009) (explaining that, under ORS 

65A.885(1), prevailing defendants generally cannot recover attorney fees unless they can show 

that the plaintiff brought a claim in bad faith or asserted a frivolous, unfounded, or objectively 

unreasonable claim).

The Court denies this request. Even though the Court grants Defendant’s motion for 

summary judgment, the Court does not go so far as to say that Plaintiff’s position lacks any 

arguable support or is baseless. 

CONCLUSION

The Court grants Defendant’s motion for summary judgment [37] because Plaintiff fails 

to establish a prima facie case of disability discrimination and because Plaintiff’s wrongful 

discharge claim is preempted by ERISA. Accordingly, this case is DISMISSED. Pending 

motions, if any, are dismissed as moot.

IT IS SO ORDERED.

Dated this day of ___________________, 2015.

 

MARCO A. HERNÁNDEZ

United States District Judge

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