IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RANDY J. THOMAS, 3:14-cv-01843-BR

Plaintiff, OPINION AND ORDER

v. 

 

COMPREHENSIVE OPTIONS FOR DRUG

ABUSERS, INC. dba CODA, INC.,

 Defendant.

DANIEL SNYDER

CARL POST

JOHN DAVID BURGESS

Law Offices of Daniel Snyder

1000 S.W. Broadway, Suite 2400

Portland, OR 97205

(503) 241-3617

Attorneys for Plaintiff

ALLYSON S. KRUEGER

SAMUEL T. SMITH

Dunn Carney Allen Higgins & Tongue, LLP

851 S.W. Sixth Ave, Suite 1500

Portland, OR 97204

(503) 224-6440

Attorneys for Defendant

BROWN, Judge.

This matter comes before the Court on Defendant

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Case 3:14-cv-01843-HZ Document 109 Filed 07/06/16 Page 1 of 27
Comprehensive Options for Drug Abusers, Inc. dba CODA, Inc.’s

(CODA) Motion (#71) for Partial Judgment on the Pleadings and

Plaintiff Randy J. Thomas’s Motion (#72) for Partial Summary

Judgment. 

Plaintiff brings this action against his former employer for

violation of (1) the Family Medical Leave Act (FMLA), 29 U.S.C. 

§ 2601, et seq.; (2) Oregon Family Leave Act (OFLA), Oregon

Revised Statutes § 659A.150, et. seq.; (3) Oregon Rehabilitation

Act (ORA), Oregon Revised Statutes § 659A.103, et seq.; and for

(4) common-law wrongful termination.

For the reasons that follow, the Court GRANTS Defendant’s

Motion for Judgment on the Pleadings and DISMISSES Plaintiff’s

Second and Third Claims to the extent they are based on conduct

that occurred before December 2, 2012, and DISMISSES Plaintiff’s

Fourth Claim on the ground that an adequate statutory remedy

exists. The Court DENIES Plaintiff’s Motion for Partial Summary

Judgment as to Defendant’s Ninth Affirmative Defense.

BACKGROUND

The following facts are taken from the Joint Statement of

Agreed Facts, Plaintiff’s Second Amended Complaint, and the

parties’ materials submitted with their respective motions and

are undisputed unless otherwise noted.

Plaintiff began work as CODA’s Facilities Manager on 

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April 1, 2011. On his first day on the job Plaintiff advised

Defendant’s Human Resources Manager, Art Thomas, that he suffered

from macular dystrophy and hand tremors and needed to use visual

aids to read (specifically, ZoomText software, a large monitor,

and camera apparatus). Later that same day Plaintiff met with

Lisa Nichols, Defendant’s supervisor, and related similar

information to her. Plaintiff also told Nichols that he had a

history of blood clots and permanent residual leg damage. He

requested accommodation for these issues by being off of his feet

and elevating his legs. He also requested all written

communications sent to him have a font of 16 points or larger

because of his vision. Nichols denied the latter request. 

In May 2011 and on subsequent occasions Plaintiff continued

to request accommodation for his visual impairments from

Defendant’s Human Resources Manager, Director of Human Resources,

Assistant to the Executive Director, IT Manager, and Director of

Finance. 

In the summer of 2011, in October 2011, and in July 2012

Plaintiff made other requests for accommodation regarding his

balance, coordination, and light-headedness due to his diabetes

and his visual impairment and hand tremors due to fatigue from

his sleep being interrupted by work calls at night that

exacerbated his tiredness from sleep apnea. Defendant also

denied these requests. 

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In June 2012 Plaintiff experienced other health problems, 

which resulted in hospitalization and required medical leave. On

his return to work Plaintiff requested a shorter or part-time

work schedule as an accommodation for his medical conditions. 

Nichols denied his request.

In July and August 2012 Plaintiff again requested 

accommodation for his visual impairments. In October 2012 the

ZoomText software and larger monitor requested by Plaintiff

arrived and were installed after some delay.

Plaintiff was off from work from November 12, 2012, to

November 16, 2012, for medical reasons. On Wednesday, 

November 21, 2012, Plaintiff’s wife picked him up after work 

and took him to the emergency room at the direction of his

doctor. When Plaintiff requested to use Friday, November 23,

2012 (the day after Thanksgiving) as one of his floating

holidays, Nichols denied his request. Plaintiff was again off

from work from November 26, 2012, to November 30, 2012, due to

the death of his father. Plaintiff was allowed three days of

bereavement leave, but Defendant denied his request to use

additional floating holidays following the bereavement leave.

Defendant terminated Plaintiff’s employment on December 4,

2012. Plaintiff filed a complaint with the Oregon Bureau of

Labor and Industries (BOLI) nearly one year later on December 2,

2013. BOLI issued a right to sue letter for Plaintiff on 

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August 21, 2014.

Plaintiff filed a Complaint in this Court on November 18,

2014. 

On February 24, 2016, Defendant filed a Motion (#71) for

Partial Judgment on the Pleadings as to Plaintiff’s Second and

Third Claims on the ground that these claims are barred by the

statute of limitations and Plaintiff’s Fourth Claim (state

common-law claim) on the ground that there is an adequate

statutory remedy. 

On February 24, 2016, Plaintiff filed a Motion (#72) for

Partial Summary Judgment as to Defendant’s Ninth Affirmative

Defense that Plaintiff failed to mitigate his damages. 

STANDARDS

I. Judgment on the Pleadings.

Federal Rule of Civil Procedure 12(c) provides:

After the pleadings are closed but within such

time as not to delay the trial, any party may move

for judgment on the pleadings. If, on a motion

for judgment on the pleadings, matters outside the

pleadings are presented to and not excluded by the

court, the motion shall be treated as one for

summary judgment and disposed of as provided in

Rule 56, and all parties shall be given reasonable

opportunity to present all material made pertinent

to such a motion by Rule 56.

For purposes of a motion pursuant to Rule 12(c), the court

must accept the nonmoving party's allegations as true and view

all inferences in a light most favorable to the nonmoving party. 

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Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). A

judgment on the pleadings is properly granted when, taking all

allegations in the nonmoving party's pleadings as true, the

moving party is entitled to judgment as a matter of law. Compton

Unified Sch. Dist. v. Addison, 598 F.3d 1181, 1185 (9th Cir.

2010). "To survive a Rule 12(c) motion, the complaint must

contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face." Davis v. Astrue,

Nos. C–06–6108 EMC, C–09–0980 EMC, 2011 WL 3651064, at *1 (N.D.

Cal. Aug. 18, 2011)(citation omitted). See also Cafasso v. Gen.

Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011)(A

Rule 12(c) motion is “functionally identical to a Rule 12(b)(6)

motion to dismiss for failure to state a claim, and therefore the

same legal standard applies.").

II. Summary Judgment

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

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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

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). 

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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.

DISCUSSION

I. Defendant’s Motion for Partial Judgment on the Pleadings

Defendant seeks partial judgment pursuant to Federal Rule of

Civil Procedure 12(c) on the ground that Plaintiff’s Second and 

Third Claims are barred by the statute of limitations and

Plaintiff’s Fourth Claim is barred on the ground that Plaintiff

has an adequate statutory remedy. 

Plaintiff contends Defendant’s Motion should be construed as

a motion for summary judgment pursuant to Federal Rule of Civil

Procedure 56 because (1) Plaintiff presents evidence outside of

the pleadings in his Response to Defendant’s Motion, 

(2) Plaintiff asserts the “continuing harm doctrine” applies, and

(3) Oregon statutes do not provide Plaintiff with a sufficient

statutory remedy as to his Fourth Claim.

As noted, Federal Rule of Civil Procedure 12(c) allows a

party to move for judgment on the pleadings “after the pleadings

are closed.” If a party, in opposition to a motion under Rule

12(c), presents “matters outside the pleadings” that are “not

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excluded by the court,” the motion may be treated as one for

summary judgment under Rule 56.

Although Plaintiff submits his own lengthy Declaration with

his Response to Defendant’s Motion, the Court finds this

Declaration does not add any substance to the analysis of the

issues. The Court, therefore, does not consider Plaintiff’s

Declaration and, accordingly, declines to construe Defendant’s

Motion for Partial Judgment on the Pleadings as a motion for

summary judgment.

A. Statute of Limitations

Under Oregon Revised Statute § 659A.875(1) a claim must be

brought “within one year after the occurrence of the unlawful

employment practice unless a complaint has been timely filed

under ORS 659A.820.” A BOLI complaint also must be filed “no

later than one year after the alleged unlawful practice.” 

Or. Rev. Stat. § 659A.820(2). 

Plaintiff’s employment with Defendant was terminated on

December 4, 2012, but Plaintiff did not file his BOLI complaint

until December 2, 2013. Defendant argues the unlawful employment

practices alleged by Plaintiff in his Second and Third Claims are

based on conduct that occurred before December 2, 2012, and,

therefore, his Second and Third Claims are barred by the one-year

statute of limitations. 

 In his Response Plaintiff “agrees that much of CODA’s

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unlawful employment practices occurred more than a year prior to

filing his BOLI complaint.” Resp. at 30. Plaintiff, however,

argues he is entitled to pursue his claims because 

(1) Defendant’s unlawful practices were “continuing in nature,”

(2) Defendant created a “hostile work environment,” and 

(3) Defendant is estopped from asserting the statute of

limitations because Defendant tacitly approved Plaintiff’s

requested accommodations but failed to provide Plaintiff with

those accommodations within a reasonable time.

1. Continuing Violations Doctrine

Oregon Administrative Rule 839-003-0025(6) provides:

A complaint must be filed with the division no

later than one year after the alleged unlawful

practice occurred. If the alleged unlawful

practice is of a continuing nature, the right to

file a complaint exists so long as the person

files the complaint within one year of the most

recent date the unlawful practice occurred. 

Emphasis added. The Oregon Supreme Court has not ruled on what

constitutes unlawful practices “of a continuing nature.”

In National Railroad Passenger Corp. v. Morgan the

Supreme Court substantially limited the continuing violations

doctrine in the context of federal employment-discrimination

actions. 536 U.S. 101 (2002). In Morgan the plaintiff filed

with the EEOC charges of discrimination and retaliation against

his employer pursuant to Title VII of the Civil Rights Act of

1964. The plaintiff alleged he was “consistently harassed and

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disciplined more harshly than other employees on account of his

race.” The EEOC issued a “Notice of Right to Sue,” and Morgan

filed his action. The district court granted summary judgment in

favor of the employer on the ground that all of the incidents

alleged by the plaintiff fell outside of the statutory period,

and, therefore, the company could not be liable for that conduct. 

The Ninth Circuit reversed the district court based on its

earlier articulation of the continuing violation doctrine that

courts may consider conduct that would ordinarily be time barred

“as long as the untimely incidents represent an ongoing unlawful

employment practice.” Id. at 106-07. On appeal the Supreme

Court reversed the Ninth Circuit and held: 

[D]iscrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged

in timely filed charges. Each discrete discriminatory

act starts a new clock for filing charges alleging that

act. The charge, therefore, must be filed within the

[statutory] time period after the discrete

discriminatory act occurred. The existence of past

acts and the employee's prior knowledge of their

occurrence, however, does not bar employees from filing

charges about related discrete acts so long as the acts

are independently discriminatory and charges addressing

those acts are themselves timely filed.

Id. at 113. 

To illustrate the meaning of the term “discrete

discriminatory act,” the Court provided the following examples:

“termination, failure to promote, denial of transfer, or refusal

to hire.” Id. at 122.

In Cherosky v. Henderson the Ninth Circuit applied the

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principles of continuing violation set out in Morgan to claims

asserted by the plaintiffs under the Americans with Disabilities

Act. 330 F.3d 1243 (2003). Although Morgan involved Title VII,

the Ninth Circuit found the Supreme Court’s analysis of the

continuing violations doctrine was not limited to Title VII

actions and that the doctrine applied with equal force to the

Rehabilitation Act and to actions arising under other civil

rights laws. In Cherosky the plaintiffs were employees of the

United State Postal Service. They contended they began having

respiratory problems after the introduction of high-speed mailsorting machines into the workplace. Each employee requested

permission to use a full-face respirator while working. The

Postal Service denied the request pursuant to a policy

prohibiting respirators except when air contaminants exceeded

safety regulations. The Ninth Circuit concluded denial of the

plaintiffs’ requests for accommodation, even though the denial

was pursuant to an ongoing company policy, constituted a discrete

discriminatory act. Id. at 1246. 

Here, however, Plaintiff argues Oregon’s continuing

harm doctrine is broader than the federal standard set out in

Morgan and followed in Cherosky. In particular, Plaintiff

contends Oregon law reflects “an expansive definition” of what

constitutes a continuing unlawful practice. The Court notes,

however, the authority on which Plaintiff relies pre-dates 2002

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when Morgan was decided. See In the Matter of Kenneth Williams,

1995 WL 17921481 (Or. BOLI, Feb. 23, 1995).

In any event, in 2014 in the case of In the Matter of

Maltby Biocontrol, Inc., an Oregon Administrative Law Judge

specifically reviewed the “continuing violations” standard of

Morgan and “adopted [that] standard.”1 2014 WL 7004598 (Or.

BOLI, Apr. 22, 2014). In Maltby BOLI contended the employer

allegedly subjected certain employees to a hostile work

environment created by racial epithets and physical assaults of

fellow employees. The employer argued the claims were timebarred. BOLI, however, relied on a continuing violation theory

to support its argument that the claim was timely. In adopting

the standard enunciated in Morgan, the Administrative Law Judge

concluded claims involving “discrete acts” of discrimination that

are brought under Oregon Revised Statute § 659A.820, et seq., are

only timely if such acts occurred within the statute-oflimitations period. The Administrative Law Judge concluded in

this instance the claims constituted a continuing violation, and,

therefore, found the claims were timely. 

Other judges in this District have also applied Morgan

to discrimination claims brought under Oregon law. See, e.g.,

1

 In fact, the Administrative Law Judge in adopting the

Morgan standard pointed out neither the Oregon statute (Or. Rev.

Stat. § 659A.820(2)) nor the administrative rule (Or. Admin. R.

839-003-0031) provided any guidance as to liability when the

“alleged unlawful practice is of a continuing nature.” 

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Chitwood v. Georgia-Pac. Corp., No. 6:05-cv-6057-HO, 2006

WL2054444, at *4 (D. Or. July 20, 2006)(holding Morgan applies to

claims under Oregon law and stating "the continuing violations

theory does not apply to discrete discriminatory acts, even when

they are related to acts alleged in timely filed charges. Each

discrete discriminatory act starts a new clock for filing charges

alleging that act."); Scruggs V. Josephine Cty. Sheriffs Dep't,

No. 1:06-cv-6058-CL, 2008 WL 608581, at *13 (D. Or. Mar. 4, 2008)

("A complaint based on alleged unlawful employment practice under

state law must be brought within one year, supra ORS 659A.820,

659A.875. As discussed above, under Morgan, the continuing

violation doctrine does not apply to discrete acts of

retaliation, and the alleged retaliatory actions will be time

barred if not brought within the limitations period."). 

Here, when Plaintiff began his employment with

Defendant, he advised Defendant regarding his physical

limitations. Defendant denied specific request for written

communications to be in 16-font text. Defendant also denied a

later request for schedule adjustment to deal with Plaintiff’s

sleep issues. Defendant also denied requests for the use of

medical and family leave.

The Court concludes these are a series of “discrete,”

allegedly discriminatory acts by Defendant related to Plaintiff’s

requests for accommodation for his visual limitations and the use

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of medical and family leave, and each discrete act give rise to a

claim of unlawful employment practice. State-law claims arising

from these discrete acts, therefore, must be brought within the

limitations period pursuant to Morgan.

2. Hostile Work Environment

Plaintiff argues he has stated a prima facie case of

hostile work environment based on Defendant’s ongoing failure to

accommodate his disabilities. Plaintiff, however, does not

identify any specific allegation(s) in his Complaint that support

such a claim.

The Morgan Court distinguished hostile work environment

claims as “different in kind from discrete acts.” 536 U.S. at

115. The Court noted when determining whether an actionable

hostile work environment claim exists, “we look to all the

circumstances, including the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.”

Id., at 116 (internal quotes and citations omitted). As the

Ninth Circuit noted in Cherosky, “[t]he Supreme Court has made

clear . . . that the application of the continuing violations

doctrine should be the exception, rather than the rule. We are

not free to depart from this directive.” 330 F.3d at 1248.

On this record the Court concludes Plaintiff’s

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allegations in his Complaint do not satisfy the criteria required

by Morgan to establish that a hostile work environment existed,

and, therefore, Plaintiff cannot obtain relief for conduct that

occurred outside of the statute-of-limitations period.

3. Estoppel

Finally, Plaintiff argues Defendant is estopped from

asserting Plaintiff’s claims are barred by the statute of

limitations because Defendant “never actually provided the

accommodation in such a manner that Thomas could use it.” 

Resp. at 36.

The doctrine of equitable estoppel applies when the

employee knows he has a claim, but the employer affirmatively and

actively takes action that causes the employee not to file his

lawsuit timely. Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176

(9th Cir. 2000). A finding of equitable estoppel rests on the

consideration of a nonexhaustive list of factors, including: 

(1) the plaintiff’s actual and reasonable reliance on the

defendant’s conduct or representations, (2) evidence of improper

purpose on the part of the defendant, and (3) the extent to which

the purposes of the limitations period have been satisfied. Id.

(citing Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir.

1981)).

Here Plaintiff does not allege any affirmative actions

by Defendant that show Plaintiff was induced not to file his

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claims timely. Plaintiff only alleges in his Complaint that

Defendant refused his requests for accommodation or denied his

requests to use medical and family leave. Moreover, Defendant

ultimately granted Plaintiff’s requests for accommodation by

eventually providing specific equipment for his visual

impairments.

As noted, the Court has concluded each act alleged by

Plaintiff in his Second and Third Claims, with the exception of

his actual termination, was a discrete act that occurred more

than one year before the filing of Plaintiff’s Complaint, and,

therefore, those claims are barred by the statute of

limitations.2

In summary, on this record the Court grants Defendant’s

Motion for Judgment on the Pleadings and dismisses Plaintiff’s

Second and Third Claims to the extent that they are based on

conduct that occurred before December 2, 2012.

B. Adequate Statutory Remedy

In his Third Claim Plaintiff alleges Defendant wrongfully

terminated him in violation of the Oregon Rehabilitation Act

2

 In his Response Plaintiff argues if the Court finds

Defendant’s conduct was not a “continuing violation,” Plaintiff

should be allowed to present evidence of acts that occurred

before December 2, 2012, as support for his timely-asserted

claims. The Court concludes this is an evidentiary issue that

should be raised in the parties' pretrial filings and resolved at

the time of the pre-trial conference, and, therefore, it will not

be addressed at this time.

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(ORA), Oregon Revised Statutes § 659A.103, et seq., and in his

Fourth Claim Plaintiff alleges Defendant wrongfully terminated

him in violation of Oregon common law.

Defendant moves for partial judgment on the pleadings

against Plaintiff’s Fourth Claim for wrongful termination on the

ground that an adequate statutory remedy for wrongful termination

exists under Plaintiff’s Third Claim pursuant to ORA.

Plaintiff fails to respond to Defendant’s assertion that ORA

provides Plaintiff with an adequate remedy and inexplicably

contends “OFLA is not a[n] adequate remedy,” and, therefore, he

is “entitled to bring a claim for wrongful discharge as well

under OFLA.”

Under Oregon law a common-law wrongful-discharge claim is

precluded when a statute provides an adequate remedy. Anderson

v. Evergreen Int'l Airlines, Inc., 131 Or. App. 726, 734 (1994)

(“availability of an adequate statutory remedy precludes an

otherwise sufficient common law wrongful discharge claim.”). The

Oregon Supreme Court has not specifically ruled as to whether ORA

provides an adequate statutory remedy. As Defendant notes in its

Motion, however, judges in this District have concluded the

remedies provided under state statutes are adequate and preclude

a common-law wrongful-discharge claim when both claims are based

on the same conduct. See, e.g., Bellingham v. Harry & David Ops.

Corp., No. CV–07–3033–PA, 2008 WL 339411, at *5 (D. Or. Feb.5,

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2008)(granting summary judgment to defendant on plaintiff's

wrongful-discharge claim because Oregon disability statutes

provided an adequate statutory remedy); Bailey v. Reynolds Metals

Co., No. CV–99–1418–HA, 2000 WL 33201900, at *2 (D. Or. Sept.11,

2000)(concluding Oregon's disability statutes preempted a claim

for wrongful discharge because the remedies provided by the

legislature are adequate).

The remedies provided under Oregon's statutory disability

discrimination laws include economic, noneconomic, and punitive

damages and attorneys’ fees. Or. Rev. Stat. § 659A.885

(providing for injunctive relief, other appropriate equitable

relief, back pay, costs and attorneys’ fees, compensatory

damages, punitive damages, and a jury trial in actions alleging a

violation of unlawful employment practices also under Or. Rev.

Stat. § 659A.103). 

On this record the Court concludes ORA provides an adequate

statutory remedy for Plaintiff’s Fourth Claim for wrongful

termination, and, therefore, the Court dismisses Plaintiff’s 

Fourth Claim.

II. Plaintiff’s Motion for Partial Summary Judgment

Plaintiff moves for partial summary judgment as to

Defendant’s Ninth Affirmative Defense that Plaintiff failed to

mitigate his damages by not maintaining subsequent employment. 

Plaintiff argues his termination from his subsequent position

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with the City of Portland does not constitute a failure to

mitigate his damages because he did not leave voluntarily and he

was not terminated due to any misconduct.

Defendant contends summary judgment in favor of Plaintiff is

precluded because there is a genuine dispute of material fact

regarding the basis for Plaintiff’s termination from his

subsequent position with the City of Portland.

A. Relevant Facts

The parties filed a Joint Statement of Agreed Facts (#70) as

follows: 

• On December 3, 2012, CODA prepared a Personnel

Action Form for involuntary termination of

Plaintiff’s employment effective December 4, 2012.

 

• On March 22, 2103, Thomas applied for the position

of Central Services Manager in the City of

Portland’s Bureau of Parks and Recreation. 

• On May 28, 2013, Thomas began working for the City

of Portland as Parks and Recreation Central

Services Manager. 

• On September 25, 2013, Kia Selley informed Thomas

she was terminating his probationary employment

with Parks and Recreation and provided him with a

termination letter.

Evidence submitted by Plaintiff indicates his job at the Bureau

of Parks and Recreation was subject to a nine-month probationary

period. The letter terminating Plaintiff’s employment with the

Bureau stated in part:

Effective today, your probationary period has been

terminated with the City of Portland as the Parks &

Recreation Central Service Manager. . . . Although as a

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probationary employee you may be terminated without a

statement of cause, the reason for this action is a

failure to meet bureau expectations regarding

accountability, communication and accessibility as well

as necessary management skills and abilities. As a

result of my review of your probation work history, I

have concluded that termination of your probationary

period is justified.

I regret that this position was not the right fit for

your skills and abilities and sincerely wish you the

best in your future endeavors.

Decl. of Randy Thomas (#74), Ex. D.

B. Mitigation of Damages

In his Complaint Plaintiff seeks back pay, among other

things. When an employee seeks an award of back pay, the

employee has an affirmative duty to mitigate damages by

exercising reasonable efforts to find other suitable employment. 

Ford Motor Co. v. EEOC, 458 U.S. 219, 231 n.15 (1982). Failure

to mitigate damages is an affirmative defense that shifts the

burden to the former employer to prove the plaintiff failed to

use reasonable efforts to find and to secure subsequent

employment. Haeuser v. Dep’t of Law, 368 F.3d 1091, 1099-1100

(9th Cir. 2004). 

In Sangster v. United Airlines, Inc., the Ninth Circuit 

noted courts have long held back pay is not to be awarded when

the evidence shows “willful loss of earnings.” 633 F.2d 864 (9th

Cir. 1980). From this general concept the Ninth Circuit set out

specific acts that constitute such willful conduct: failure to

remain in the labor market, refusal to accept substantially

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equivalent employment, failure to search for alternative work

diligently, or voluntarily quitting alternative employment

without good reason. Id. at 868. None of those acts, however, 

apply in this case. The court in Brady v. Thurston Motor Lines,

Inc., held termination for cause may also constitute a “willful

loss of earnings” and, therefore, constitute a failure to

mitigate. 753 F.2d 1269, 1279 (4th Cir 1985). In Richardson v.

Tricom Pictures & Prods., 334 F. Supp. 2d 1303 (S.D. Fla. 2004),

the court found a plaintiff’s termination due to “behavior that

was not accidental” but was “egregious” may also constitute a

failure to mitigate. Id. at 1314. 

Here Plaintiff argues his termination from the Bureau was

not for any violation of City policy or for any misconduct. He

was terminated merely because he was “not a good fit” as

reflected in the City’s termination letter. As stated in the

letter, however, the City reached this determination by finding

Plaintiff failed to “meet bureau expectations regarding

accountability, communication and accessibility” as well as

posessing a lack of “skills and abilities.” Although Plaintiff’s

conduct may not have been egregious or willful, Defendant argues

evidence exists showing Plaintiff failed to follow Bureau rules

and to meet the Bureau’s expectations, that he performed his job

duties poorly, and that he failed to cure performance

deficiencies despite opportunities to do so. As noted, the Ninth

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Circuit has not specifically identified the circumstances that

constitute a failure to mitigate damages when a plaintiff’s

employment is involuntarily terminated. In any event, under

these circumstances a jury could reasonably conclude Plaintiff

failed to act in good faith and to make reasonable efforts to

maintain his employment.

Accordingly, on this record the Court concludes a genuine

dispute of material fact exists and, therefore, denies

Plaintiff’s Motion for Partial Summary Judgment. 

III. Evidentiary Objections

Each party raises evidentiary objections to materials

submitted by the other in support of their respective Motions. 

Defendant moves to exclude the Oregon Employment

Department’s administrative decision awarding Plaintiff

unemployment benefits following his termination from the City of

Portland. See Thomas Decl., Ex. E. Plaintiff, in turn, moves to

exclude the deposition testimony of Kia Selley submitted by

Defendant. 

A. Exhibit E

Defendant argues Exhibit E is inadmissible pursuant to

Oregon Revised Statute § 657.273(2), which provides 

administrative decisions awarding unemployment benefits “are not

admissible as evidence in any other civil action or proceeding.”

Plaintiff contends § 657.273 does not apply in a federal

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court and that Exhibit E is admissible under the Federal Rules of

Evidence as a business record. 

In Feldman v. Allstate Ins. Co., the Ninth Circuit stated:

Most evidentiary rules are procedural in nature, and

the Federal Rules of Evidence ordinarily govern in

diversity cases. However the Federal Rules do not

supplant all state evidentiary provisions in federal

ones. Rather, state evidence rules that are intimately

bound up with the state’s substantive decision making

must be given full effect by federal courts sitting in

diversity. Moreover, some state law rules of evidence

in fact serve state policies and are more properly

rules of substantive law within the meaning of Erie.

322 F.3d 660, 666 (9th Cir. 2003)(internal quotation marks and

citations omitted). See also Wray v. Gregory, 61 F.3d 1414, 1417

(9th Cir. 1995)(federal trial court required to apply special

state evidentiary statute in context of medical malpractice

case).

Absent any authority contradicting the clear language of the

Oregon statute and in light of the holdings in Feldman and Wray,

the Court finds Exhibit E to be inadmissible for purposes of this

Motion.3

B. Deposition Testimony

Plaintiff argues the deposition excerpts of Kia Selley,

Plaintiff’s supervisor at the City of Portland, is inadmissable 

because (1) Selley lacked personal knowledge as required by

3 Defendant raises other grounds to exclude Exhibit E

pursuant to the Federal Rules of Evidence. Inasmuch as the Court

finds Defendant’s first argument persuasive, however, it need not

address those other grounds.

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Federal Rule of Evidence 602, (2) her statements were hearsay

under Federal Rule of Evidence 801, and (3) her statements that

Plaintiff “lied” reflect on the credibility of Plaintiff.

Defendant responds with supplemental deposition testimony

that allegedly cures the hearsay and lack-of-personal knowledge

objections. In addition, Defendant asserts Selley’s use of the

words “lie” or “lied” do not constitute a comment on Plaintiff’s

character for untruthfulness, but rather reflect Selley’s beliefs

at the time and served as a factor in the decision to discharge

Plaintiff.

Although a person may not offer an opinion about another

person’s truth-telling ability, it is difficult to draw the line

between an inadmissible statement that is tantamount to a direct

comment on the credibility of a witness and an admissible

statement that is relevant for a different reason but tends also

to reflect on the truthfulness of a witness. See State v.

Beauvais, 357 Or. 524, 545 (2015)(testimony regarding criteria

used to evaluate whether a child-victim was being deceptive was

admissible to assist jury in the assessing credibility of the

child-victim). 

On summary judgment this Court may not weigh the evidence or

determine the truth of the matter. France v. Johnson, 795 F.3d 

1170, 1172 (9th Cir. 2015). The Court must, however, determine

whether the evidence submitted shows there is a genuine dispute

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as to any material fact. See Fed. R. Civ. P. 56(b). “A party

may object that material cited to support or dispute a fact

cannot be presented in a form that would be admissible in

evidence.” Fed. R. Civ. P. 56(c)(2). Thus, at the summaryjudgment stage, a party does not necessarily have to produce

evidence in the form that would be admissible at trial. Block v.

City of Los Angeles, 253 F.3d 410, 419 (9th Cir. 2001). The

Court, therefore, finds Selley’s deposition testimony is

admissible for purposes of resolving this Motion even though it

may not necessarily be admissible at trial in its current form. 

On this record the Court concludes the excerpt of the

deposition testimony of Kia Selley is admissible for purposes of

this Motion.

CONCLUSION 

For these reasons, the Court GRANTS Defendant’s Motion (#71)

for Judgment on the Pleadings and DISMISSES Plaintiff’s Second

and Third Claims to the extent they are based on conduct that

occurred before December 2, 2012, and DISMISSES Plaintiff’s

Fourth Claim on the ground that an adequate statutory remedy 

exists. The Court DENIES Plaintiff’s Motion (#72) for Partial

Summary Judgment as to Defendant’s Ninth Affirmative Defense.

The Court DIRECTS the parties to submit a Joint Proposed

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Case Management Schedule no later than July 18, 2016, regarding

the claims remaining in this case.

IT IS SO ORDERED.

DATED this 6th day of July, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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