ANCER L. HAGGERTY, United States District Judge.
The plaintiff has alleged a claim pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101, and has also alleged state statutory violations, conspiracy, intentional infliction of emotional distress, and "fraud and deceit and intentional misrepresentation." Presently before the court are motions for summary judgment filed by defendants Adams Associates, VVP America, and Todd Bertges.
Defendant Gary Barcher has been dismissed from the case. Also, the ADA claims against Superior National and Commercial Compensation have been dismissed and the remaining claims against the insurance companies are stayed because the two companies are in receivership.
BACKGROUND
Adams Associates (Adams) is a temporary staffing agency. Plaintiff worked for Adams from 1996 to 2000. Throughout this time, plaintiff worked under the supervision of Todd Bertges, the staffing specialist who was responsible for plaintiff's placements. During his four years with Adams, the plaintiff worked many different assignments.
On January 25, 2000, plaintiff accepted a temporary assignment at VVP America (VVP). Plaintiff's duties included assembly line processing, which entailed feeding mirrors through a machine with various conveyors. Plaintiff worked for VVP for approximately thirteen days.
On February 10, 2000, plaintiff sustained an injury to several fingers on his right hand, which were somehow caught in a roller mechanism. The plaintiff did no further work for VVP.
The plaintiff missed one day of work due to his injury. Adams, consistent with its practice of trying to find light-duty work for workers with work restrictions, placed the plaintiff in its own office. It had no other light-duty positions available with any of its clients. Plaintiff's duties included filing, rearranging the filing system, computerizing records, and other miscellaneous office chores. The plaintiff testified in his deposition that he did extensive computer input. Another worker who required light duty was also assigned to the defendant's office.
On or about March 10, 2000, plaintiff filed a formal OSHA complaint against VVP. The plaintiff maintains that Adams learned of the complaint, and conspired to terminate his employment and deny him any benefits, including workers compensation insurance. However, there is no evidence that Adams learned of his OSHA complaint prior to May 12, 2000, which is when the plaintiff ultimately quit working for Adams.
By April 17, 2000, Adams did not have enough light duty office work for two workers at that one location, and assigned the plaintiff to do office work at another of defendant's offices. The plaintiff worked at the second location for approximately three weeks. On about May 3, 2000, the defendant had no more office work for the plaintiff. His computer work at the second office was cut short not because of any physical limitation due to carpal tunnel syndrome, but because the regular personnel at the second office could not use the programs necessary to benefit from plaintiff's data inputting efforts.
On May 3rd, one of the defendant's staffing personnel discussed a telemarketing job with the plaintiff. The parties disagree about the outcome of that conversation. The plaintiff maintains that he said that the defendant would have to clear it with his doctor, while defendant Adams maintains that the plaintiff declined the offer and left the office. Regardless of which version of events occurred, the parties agree that Adams had no more light duty work for the plaintiff, and the plaintiff went home.
On May 10, 2000, the plaintiff applied for workers compensation benefits with Adams' insurance carrier. He was told that Bertges had reported that the plaintiff had refused suitable employment as a telemarketer.
The plaintiff returned to the Adams office on May 12, 2000, to pick up his check. At that time, Bertges attempted to talk to the plaintiff about another light-duty position that had become available, but the plaintiff would not talk with Bertges or consider any further work through Adams because he felt that Bertges had fired him by trying to deny his workers compensation benefits.
The plaintiff's theory appears to be that he was fired on May 3, 2000, but that it was Bertges' subsequent act of reporting the plaintiff's refusal to accept the telemarketing work which constituted the constructive discharge.
On May 25, 2000, the plaintiff was examined by Dr. Van Allen, who found that the plaintiff's right hand injury was medically stable. The plaintiff was released to work without restrictions.
Plaintiff exhausted his administrative remedies with respect to Adams, but did not file an administrative complaint against VVP prior to filing the present action.
STANDARD OF REVIEW
A party is entitled to summary judgment as a matter of law if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Bahn v. NME Hosp's, Inc., 929 F.2d 1404, 1409 (9th Cir.) cert. denied, 112 S.Ct. 617 (1991).
The moving party must carry the initial burden of proof. The party meets this burden by identifying portions of the record on file which demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 2552 (1986). Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id. The facts on which the opponent relies must be admissible at trial, although they need not be presented in admissible form for the purposes of opposing the summary judgment motion. Id.
The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. Of North America, 638 F.2d 136, 140 (9th Cir. 1981).
Deference to the non-moving party does have some limit. The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). The "mere existence of a scintilla of evidence in support of the plaintiff's position would be insufficient." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). Therefore, where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986).
DISCUSSION
1. Plaintiff's Claims Against VVP.
The plaintiff makes the following claims against VVP: (1) violation of the ADA, (2) wrongful discharge under various state statutes, (3) conspiracy to deprive him of his civil rights, and (4) intentional infliction of emotional distress.
a. Americans with Disabilities Act Claim
To state a claim under the ADA, a plaintiff must offer competent evidence to support a finding that he is disabled within the meaning of the ADA, that he is able to perform the essential functions of the job with or without reasonable accommodation, and that the employer discriminated against him in the terms and conditions of his employment because of his disability. Further, the plaintiff must exhaust his administrative remedies prior to filing suit in district court.
Plaintiff's ADA claim against VVP fails for several reasons. First, he did not exhaust his administrative remedies with respect to VVP. The plaintiff tries to argue that his claim qualifies for the "identity of interest" exception because Adams and VVP had identical interests. He also argues that they were joint employers. However, the plaintiff has offered no evidence to support either theory and the circumstances of his employment do not support such an inference. See Stewart v. Intem, Inc., 2000 WL 33201873 (D.Or. 2000); Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320 (9th Cir. 1991).
VVP correctly points out that the plaintiff settled his workers compensation claim against Adams. During that suit, the plaintiff did not ever allege that VVP was his employer, or that VVP was a joint employer with Adams.
Plaintiff's ADA claim also fails because he has not presented any evidence that he is disabled within the meaning of the ADA. See Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S.Ct. 681 (2002). To the extent that the plaintiff alleges that the conspiracy to deprive him of his civil rights is based on the ADA, that claim must also fail.
The plaintiff does not allege that he was "regarded as having" a disability under 42 U.S.C. § 12102(2)(C), nor does the record contain any evidence that either Adams or VVP regarded the plaintiff as having a disability.
b. Conspiracy
The plaintiff's evidence does not support any inference of a conspiracy between VVP and Adams. The conspiracy allegation appears to center on Bertges' report to the insurance carrier that the plaintiff refused suitable work as a telemarketer. Even if Bertges' action could constitute the unlawful overt act to support a conspiracy claim, there is absolutely no evidence that links VVP to that act. The plaintiff alleges that somebody mentioned that VVP and Adams were upset about his OSHA complaint, but he needs more than his own vague recollection of some statement by some unidentified person to show that VVP was involved in an effort to harm him. While the plaintiff is correct that the court may consider evidence that is not in a form that is admissible at trial, the plaintiff's offer of unverifiable hearsay does not satisfy his burden.
The court was concerned that the plaintiff's discovery had been limited by the order of September 14, 2001. However, a careful review of that order and the plaintiff's motion to compel reveal that none of the discovery which the plaintiff was seeking would have been material to the present motions for summary judgment.
c. State Statutory Claims
The plaintiff's state statutory claims all depend on the fact that he was constructively discharged by VVP. However, the facts of the case do not support such an inference as against VVP, even assuming that the plaintiff was constructively (wrongfully) discharged. VVP was not the plaintiff's employer, and had no part in any such adverse employment action.
d. Intentional Infliction of Emotional Distress
Plaintiff's final claim against VVP is for the intentional infliction of emotional distress. To prevail on this claim, a plaintiff must prove that:
(1) the defendant intended to inflict severe emotional distress on the plaintiff; (2) the defendant's acts were the cause of plaintiff's severe emotional distress; and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.
Sheets v. Knight, 308 Or. 220, 236 (1989).
As with his other claims, this claim fails because VVP had no part in his alleged wrongful discharge. Further, the plaintiff has not offered any evidence that VVP acted in any manner that could be interpreted as an extraordinary transgression of the bounds of socially tolerable conduct. Finally, the plaintiff has not offered evidence of his own emotional distress. To maintain a claim for the intentional infliction of emotional distress, the plaintiff must establish that the emotional distress does exist, and that it is severe. Pakos v. Clark, 253 Or. 113, 131 (1969).
2. Plaintiff's Claims Against Adams Associates and Todd Bertges
a. Americans with Disabilities Act Claim
For the purposes of this motion, Adams does not attempt to argue that the plaintiff is not disabled within the meaning of the ADA. However, the recent Supreme Court decision of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S.Ct. 681 (2002), makes clear that the plaintiff's ADA claims must fail. Because defendant VVP did make this argument, the plaintiff had the opportunity to respond fully to this issue and develop the record to support his claim.
The plaintiff's ADA claim against Bertges fails because Bertges is not a "covered entity" within the meaning of the statute. If he were a covered entity, the plaintiff would face the hurdle of showing he exhausted his administrative remedies.
b. State Statutory Claims
Adams contends that the plaintiff's theory of constructive discharge is the basis for his ADA and state claims, and that the plaintiff has failed to offer any evidence to support that theory. Adams is correct. The plaintiff's evidence of the discharge is only that Bertges notified the insurance carrier that the plaintiff had refused suitable work. In the context of all of the facts and circumstances of this case, that act cannot rise to the level of constructive discharge.
Under Oregon law, constructive discharge requires proof that: (1) the employer intentionally created or intentionally maintained specified working conditions(s); (2) those working conditions were so intolerable that a reasonable person in the employee's position would have resigned because of them; (3) the employer desired to cause the employee to leave employment as a result of those working conditions or knew that the employer was certain, or substantially certain, to leave employment as a result of those working conditions; and (4) the employee did leave the employment as a result of those working conditions.
McGanty v. Staudenraus, 321 Or. 532, 557 (1995).
The plaintiff's most obvious failure of proof relates to the "intolerable" working conditions which Adams must have intentionally created or maintained. However, the plaintiff's claim also fails because he has not offered any proof to create a genuine issue as to whether Adams desired to have him leave his employment. The evidence establishes that Adams, through Bertges, continued to treat the plaintiff as though he was available for work, and even attempted to secure another position for the plaintiff.
c. Conspiracy
Plaintiff's allegation of a conspiracy also fails for lack of evidence. To prove a conspiracy, a plaintiff must show that two or more persons agreed upon and took some course of action through one or more overt acts that caused some injury to the plaintiff. Bonds v. Landers, 279 Or. 169, 174 (1977). He offers no evidence of an agreed upon course of action or objective, or of any unlawful overt act.
d. Intentional Infliction of Emotional Distress
Plaintiff's claim for the intentional infliction of emotional distress also fails. As explained above, the plaintiff has not offered proof to support an inference of either emotional distress or of conduct which constituted "an extraordinary transgression of the bounds of socially tolerable conduct." Sheets, 308 Or. at 236.
e. Fraud, Deceit, Intentional Misrepresentation
The plaintiff's final claim for fraud, deceit and intentional misrepresentation requires proof that the defendant intended to deceive the plaintiff, and that the plaintiff relied on the misrepresentation to his detriment. United States National Bank of Oregon v. Fought, 291 Or. 201, 220-21 (1981). The plaintiff's evidence consists only of Bertges' statement to the insurance carrier that the plaintiff refused work as a telemarketer. Even assuming some malevolent intent on the part of Bertges, the plaintiff was not in any way deceived, nor did he rely on Bertges' statement to his detriment.
CONCLUSION
The defendants' motions (#38, #43) for summary judgment are granted.
The plaintiff shall have 21 days from the date of this order to show cause why this court should not vacate the stay of his remaining claims against Superior National Insurance Company and Commercial Compensation Insurance Company and enter summary judgment in favor of those defendants.
To show cause, the plaintiff must specifically identify each remaining claim against each insurance company, identify the elements of each claim, and describe with specificity the evidence upon which he relies to support each claim.