IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOSEPH KWIECINSKI,

Plaintiff,

v.

MEDI-TECH INTERNATIONAL

CORP., a Delaware

corporation,

Defendant.

3:14-CV-01512-BR

 

OPINION AND ORDER 

DONALD B. POTTER

Spaulding & Potter LLP

3236 S.W. Kelly Avenue

Suite 101

Portland, OR 97239

(503) 223-2612 

Attorneys for Plaintiff

DANIEL J. NICHOLS

Gordon & Rees LLP

121 S.W. Morrision

Suite 1575

Portland, OR 97204

(503) 222-1075 

Attorneys for Defendant

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Case 3:14-cv-01512-BR Document 64 Filed 06/03/16 Page 1 of 15
BROWN, Judge.

This matter comes before the Court on Defendant Medi-Tech

International Corp.'s Motion (#42) for Summary Judgment. For the

reasons that follow, the Court GRANTS Defendant’s Motion.

BACKGROUND

The following facts are taken from Plaintiff’s Complaint,

the Amended Complaint, and the parties' materials related to

Defendant’s Motion for Summary Judgment.

On July 20, 2012, Plaintiff Joseph Kwiecinski, an Oregon

resident, was hired as a sales representative for Defendant’s

Northwest territory, which includes Oregon, Washington, Alaska,

Montana, and Idaho. Defendant is a Delaware corporation with its

principal place of business in New York. 

On August 20, 2012, Plaintiff began working for Defendant

out of an office in his home in Oregon. On August 20, 2012,

Plaintiff traveled to the New York City metropolitan area for

training.

On August 22, 2012, Plaintiff was a passenger in a car

driven by a coworker that was rear-ended by a third party. 

Plaintiff suffered unspecified injuries. Plaintiff “quickly”

informed Randy Walsh, Defendant’s Vice President of Sales, about

Plaintiff’s injuries. Plaintiff, however, did not immediately

seek medical attention because he believed at the time that his

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injuries were not severe.

Over the two days following the accident Plaintiff did not

recover from his injuries and advised his “superiors” that he

needed to see a doctor. Plaintiff, however, was unable to see a

doctor before his August 24, 2012, flight back to Oregon.

On August 24, 2012, Plaintiff left voice messages for George

Fortunato, Defendant’s President, asking him to call Plaintiff

about events in New York. Plaintiff testified at deposition that

he wanted to talk to Fortunato about whether Plaintiff should

file a New York workers' compensation claim because Plaintiff had

been advised by “the people [he] had worked for” that Fortunato

had “lots of workmen’s comp . . . and non-workmen’s comp

[experience].” Pl.’s Depo. at 23. 

On August 27, 2012, Fortunato returned Plaintiff’s calls. 

At his deposition Plaintiff testified as follows regarding his

conversation with Fortunato:

It wasn't, hey, George, I have to file a workers'

comp, because I'm not even sure I actually knew

totally about it. I mean, the minute we got in an

accident, all these insurance companies are

calling me. New York's the craziest thing ever, I

think. So they are all calling me. I didn't know

what to do. . . . [W]hoever was my boss, said,

hey, ask George [Fortunato], he'll answer the

questions. And that's where we kind of went on a

-- had a little conversation about it. 

Pl.’s Depo. at 24. Plaintiff testified he and Fortunato did not

“talk about the accident itself and whether . . . it was a

workers’ comp claim” nor did Plaintiff ask Fortunato “whether 

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. . . this is a [New York] workers’ comp claim.” Id. Plaintiff,

however, also testified:

A. [Fortunato] said, Joe, if you file a workers’

comp claim, I physically can’t pay you any

more.

Q. I see. Meaning he can’t pay you your salary?

A. Right.

Q. Did he explain why?

A. No. I didn’t -- after that . . . I did not

expand on those questions, and that’s when he

went on to [say] you need to send me all your

bills, I’ll pay your bills; and if you don’t

do that you basically won’t be here anymore.

Pl.’s Depo. at 25. The parties do not dispute the content of

Plaintiff’s telephone conversation with Fortunato, but only the

implication of Fortunato’s statements. According to Plaintiff,

he believed Fortunato was threatening his job if he filed a New

York workers' compensation claim. Fortunato, however, believed

Plaintiff was only calling him for advice.1

On September 24, 2012, Plaintiff filed a workers'

compensation claim in New York. Plaintiff described the incident

in his Workers' Compensation Claim Form as follows:

We had just left a customer and were on own [sic]

way for some personal errands. It was my first

1 Defendant asserts Fortunato’s comment was a correct

statement of New York State Workers Compensation law, which

provides “[a]n employer may withhold payments while seeking

review by the [Workers Compensation] Board” when a claim is

expected to be controverted. Jasmine v. Rainbow Grill, 496

N.Y.S. 2d 788, 790 (1985).

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time to NYC and wanted to see the statue of

Liberty. We were not working at the time. . . . 

After the accident we went to lunch and the Statue

of Liberty and called it a day. The only reason

we were on that particular road was to get [sic]

the Statue of Liberty.

Pl.’s Depo., Ex. 9.

On September 26 and 27, 2012, Defendant received Plaintiff’s

New York workers' compensation claim.

On October 29, 2012, Walsh telephoned Plaintiff and told him

that his employment was terminated.

On November 1, 2012, Plaintiff received a letter from Walsh

terminating Plaintiff’s employment as of October 29, 2012.

On February 22, 2013, Plaintiff filed a workers'

compensation claim in Oregon.

On March 4, 2013, the New York Workers' Compensation Board

held a hearing on Plaintiff’s claim. 

On March 7, 2013, the New York Workers' Compensation Board

issued a Notice of Decision in which it closed the matter and

noted Plaintiff was to “reopen case with counsel. No further

action is planned by the Board at this time.” Decl. of Millard

King Roper, Ex. C at 1.

On September 23, 2014, Plaintiff filed an action in this

Court against Defendant alleging claims for workers' compensation

discrimination in violation of Oregon Revised Statute § 659A.040,

failure to pay wages in violation of Oregon’s wage-and-hour laws,

and failure to pay final wages in violation of Oregon’s wage-and5 - OPINION AND ORDER

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hour laws.

On December 15, 2014, before Defendant filed an Answer,

Plaintiff filed an Amended Complaint in which he alleged claims

for workers' compensation discrimination in violation of Oregon

Revised Statute § 659A.040 and failure to pay final wages in

violation of Oregon’s wage-and-hour laws.

On December 29, 2014, Defendant filed a Motion to Dismiss

Amended Complaint for lack of personal jurisdiction and/or on the

ground that venue was not proper in Oregon. On April 17, 2015,

the Court heard oral argument on Defendant’s Motion. At oral

argument Plaintiff voluntarily dismissed his claim against

Defendant for failure to pay final wages in violation of Oregon’s

wage-and-hour laws, the Court denied Defendant’s Motion to

Dismiss for lack of personal jurisdiction, and the Court directed

the parties to file simultaneous briefs on the Motion to Dismiss

the remaining claim for workers' compensation discrimination on

the basis of improper venue.

On April 27, 2015, the parties filed supplemental briefs.

On June 25, 2015, the Court issued an Opinion and Order in

which it denied Defendant’s Motion to Dismiss the remaining claim

for workers' compensation discrimination.

On August 28, 2015, Plaintiff filed a Second Amended

Complaint against Defendant alleging claims for workers'

compensation discrimination in violation of Oregon Revised

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Statute § 659A.040 and wrongful discharge and reviving his claim

for failure to pay final wages in violation of Oregon’s wage-andhour laws.

On February 12, 2016, Defendant filed a Motion for Summary

Judgment in which it seeks summary judgment as to Plaintiff’s

claims for workers' compensation discrimination in violation of 

§ 659A.040 and wrongful discharge. 

STANDARDS

Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011). See also Fed. R.

Civ. P. 56(a). The moving party must show the absence of a

dispute as to a material fact. Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005). In response to a properly

supported motion for summary judgment, the nonmoving party must

go beyond the pleadings and show there is a genuine dispute as to

a material fact for trial. Id. "This burden is not a light one

. . . . The non-moving party must do more than show there is

some 'metaphysical doubt' as to the material facts at issue." In

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)

(citation omitted). 

A dispute as to a material fact is genuine "if the evidence

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is such that a reasonable jury could return a verdict for the

nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). The court must draw all

reasonable inferences in favor of the nonmoving party. Sluimer

v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary

judgment cannot be granted where contrary inferences may be drawn

from the evidence as to material issues." Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted). A “mere

disagreement or bald assertion” that a genuine dispute as to a

material fact exists “will not preclude the grant of summary

judgment.” Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)

(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.

1989)). When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive

evidence than otherwise would be necessary." LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted). 

The substantive law governing a claim or a defense

determines whether a fact is material. Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the

resolution of a factual dispute would not affect the outcome of

the claim, the court may grant summary judgment. Id.

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DISCUSSION

As noted, Defendant moves for summary judgment as to

Plaintiff’s claims for workers' compensation discrimination in

violation of § 659A.040 and wrongful discharge.

I. Plaintiff’s Claim for Workers' Compensation Discrimination

In his claim for workers' compensation discrimination

Plaintiff alleges Defendant violated § 659A.040 when it

“terminat[ed] Plaintiff from employment on October 29, 2012 in

substantial part because Plaintiff filed a workers' compensation

claim and otherwise invoked the workers' compensation system.” 

Second Am. Compl. at ¶ 16. 

Defendant moves for summary judgment on this claim based on

the fact that Plaintiff, at the time of his termination, had only

applied for or invoked the benefits of the New York workers'

compensation system and § 659A.040 protects only employees who

apply for or invoke the benefits of the Oregon workers'

compensation system. Plaintiff, however, asserts § 659A.040 is

intended to protect Oregon workers who invoke or apply for the

benefits from the workers' compensation system of any state. 

Plaintiff’s argument, however, is not well-taken.

Oregon Revised Statute § 659A.040(1) provides in pertinent

part:

It is an unlawful employment practice for an

employer to discriminate against a worker with

respect to hire or tenure or any term or condition

of employment because the worker has applied for

9 - OPINION AND ORDER

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benefits or invoked or utilized the procedures

provided for in ORS chapter 656.

Courts have interpreted § 659A.040 to protect only workers who

apply for, invoke, or utilize the procedures of the Oregon

workers' compensation system. See, e.g., Jenkins v. VestasAmerican Wind Tech., Inc., No. 3:12–cv–01758–AA, 2014 WL

136497149, at *5 (D. Or. Apr. 4, 2014)(“Oregon's workers'

compensation statute, Or. Rev. Stat. § 659A.040(1), only protects

employees who apply for benefits under Oregon law.”); Anderson v.

Hibu, Inc., 26 F. Supp. 3d 1019, 1025 (D. Or. 2014)(“O.R.S. 

§ 659A.040(1), like O.R.S. § 659A.109, prohibits ‘discrimination’

with ‘respect to hire or tenure or condition of employment

because’ a person has applied for benefits or invoked Oregon

statutory procedures.”). The Court finds the reasoning of

Jenkins and Anderson to be well- supported by the language of 

§ 659A.040 as well as § 659A as a whole and adopts that

reasoning. 

At the time of Plaintiff’s discharge he had applied for

and/or invoked only the benefits of the New York workers'

compensation system. The Court, therefore, concludes Plaintiff

has not established Defendant violated § 659A.040.

Accordingly, the Court grants Defendant’s Motion for Summary

Judgment as to Plaintiff’s claim for workers' compensation

discrimination in violation of § 659A.040.

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II. Plaintiff’s Claim for Wrongful Discharge

In his claim for wrongful discharge Plaintiff alleges

Defendant wrongfully discharged him in substantial part for

invoking or “otherwise taking action in pursuit of” a workers'

compensation claim. 

A. Standards

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 (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

(2006). The tort of wrongful discharge was not intended to be a

tort of 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 (2009)(citation omitted). Oregon courts have

recognized two circumstances that give rise to the common-law

tort of wrongful discharge: (1) discharge for exercising a jobrelated right of important public interest and (2) discharge for

complying with a public duty. 

B. Analysis

Defendant seeks summary judgment on Plaintiff’s claim

for wrongful discharge on the ground that Plaintiff has an

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adequate statutory remedy.

As noted, Plaintiff did not file or otherwise take any

action in pursuit of his Oregon workers' compensation claim until

after he was terminated. Plaintiff’s claim for wrongful

discharge, therefore, involves his discharge allegedly for

invoking the New York workers' compensation system. Plaintiff

asserts if this Court concludes Plaintiff has not established a

violation of Oregon Revised Statute § 659A.040, he does not have

an adequate statutory remedy and, therefore, may bring a claim

for wrongful discharge. Plaintiff also asserts the Court may

consider only whether Plaintiff has an adequate remedy under

Oregon statutes when deciding whether Plaintiff can bring a claim

for wrongful discharge. Defendant, however, asserts New York

provides an adequate remedy for Defendant’s alleged wrongful

termination of Plaintiff based on Plaintiff invoking the New York

workers' compensation system. 

In Jenkins the plaintiff sustained a knee injury and filed a

workers' compensation claim in Texas where he resided. The

defendant terminated the plaintiff’s employment after he filed

his Texas workers' compensation claim. The plaintiff then filed

an action in the United States District Court for the District of

Oregon in which he alleged, among other things, a claim for

wrongful discharge in violation of Oregon common law. 2014 WL

1364971, at *1. The defendant moved for summary judgment as to

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the plaintiff’s wrongful-discharge claim on the ground that the

plaintiff had an adequate statutory remedy under Texas statutes

and, therefore, could not bring a claim for wrongful discharge

under Oregon law. Specifically, the plaintiff asserted “Oregon's

public policy, as announced in Ness [v. Hocks, 272 Or. 210

(1975)], protects [him] from termination because he sought to

access workers compensation benefits [under Texas law] for an

injury he suffered while working for [defendant].” Id., at *5. 

According to the plaintiff, therefore, he could bring an Oregon

common-law claim for wrongful discharge. Chief Judge Ann Aiken

acknowledged “Oregon's workers’ compensation statute, Or. Rev.

Stat. § 659A.040(1), only protects employees who apply for

benefits under Oregon law” and noted the plaintiff in Jenkins

applied for workers' compensation benefits in Texas. Id. Chief

Judge Aiken also noted 

an adequate statutory remedy need not be found

within the forum state's statutory scheme. See,

e.g., Walsh, 278 Or. at 351–53 (Oregon common law

wrongful discharge claim preempted because an

adequate statutory remedy existed under federal

law); Reid v. Evergreen Aviation Ground Logistics

Enters. Inc., 2009 WL 136019, *21 (D. Or. Jan. 20,

2009) (same).

Here, an adequate statutory remedy exists under

Texas statute. . . . Texas, like Oregon,

prohibits an employer from discharging an employee

because that employee has filed a workers'

compensation claim. See Tex. Lab. Code § 451.001. 

A person who is discharged in violation of Tex.

Lab. Code § 451.001 can seek “reasonable damages”

incurred as a result of the violation and

“reinstatement in the former position of

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employment.” Tex. Lab. Code § 451.002. These

damages are nearly identical to those available

under Oregon's workers' compensation statute,

which has been held to preclude Oregon common law

wrongful discharge claims. Compare id., with Or.

Rev. Stat. §§ 659A.040, 659A.885; see also Whitley

v. City of Portland, 654 F. Supp.2d 1194, 1224–25

(D. Or. 2009).

Chief Judge Aiken, therefore, concluded the plaintiff could not

bring a common-law wrongful-discharge claim in Oregon.

Similarly, New York prohibits terminating a worker for

invoking the New York workers' compensation statute. 

Specifically, New York State Workers' Compensation Law § 120

provides in relevant part: “It shall be unlawful for any

employer . . . to discharge . . . an employee . . . because such

employee has claimed or attempted to claim compensation from such

employer, or claimed or attempted to claim any benefits provided

under this chapter.” Under New York statutes an employee who is

discharged in violation of § 120 may seek damages for “any loss

of compensation arising out of such discrimination together with

such fees or allowances for services rendered by an attorney” and

“shall be restored to employment or otherwise restored to the

position or privileges he or she would have had but for the

discrimination.” These damages and equitable relief are nearly

identical to those available under the workers' compensation

statute of Oregon, which courts have held is an adequate

statutory remedy precluding common-law wrongful-discharge claims. 

See Or. Rev. Stat. § 659A.885 and Whitley v. City of Portland,

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654 F. Supp.2d 1194, 1224-25 (D. Or. 2009).

The Court, therefore, concludes Plaintiff’s wrongfuldischarge claim is precluded because Plaintiff has an adequate

statutory remedy for his alleged wrongful termination for

invoking the New York workers' compensation provisions. 

Accordingly, the Court grants Defendant’s Motion for Summary

Judgment as to Plaintiff’s claim for wrongful discharge. 

CONCLUSION

For these reasons, the Court GRANTS Defendant’s Motion (#42)

for Summary Judgment. Accordingly, this matter will proceed only

as to Plaintiff’s claim for failure to pay final wages in

violation of Oregon’s wage-and-hour laws.

The Court DIRECTS the parties to file no later than June 10,

2016, a Joint Statement advising the Court whether they are ready

to proceed to trial on the existing trial schedule as follows:

Pretrial Order and Verdict form: July 29, 2016

Pretrial Documents: August 12, 2016

Pretrial Conference: August 26, 2016

3-day Jury Trial: August 30, 2016. 

IT IS SO ORDERED.

DATED this 3rd day of June, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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