FREUDENTHALER v. FORT JAMES OPERATING CO., (D.Or. 2000)

DONALD C. ASHMANSKAS, Magistrate Judge:

Fort James Operating Company ("Defendant") filed a motion for summary judgment against each of the plaintiffs in this action. These motions are presently before the court. While the plaintiff's factual scenarios are unique, the primary issue raised by the motions is whether written reprimand constitutes an adverse employment action required to establish a prima facie case of retaliation. The court will address the motions together in this findings and recommendation.

In early 1995, Defendant adopted safety procedures which are compiled at SFT 1301-03 of Defendant's manual. SFT 1302 sets forth the progressive discipline concepts utilized by Defendant and provides, in part:

The usual progression is verbal reprimand, formal reprimand, final reprimand/suspension, and discharge. The progression need not be followed rigidly. For example, a particularly severe offense might warrant a suspension, regardless of whether the offender had previously received any reprimands. Conversely, a second written reprimand might be given for an offense that is unrelated to previous offenses and is not serious enough to justify time off without pay.

Plaintiff Freudenthaler injured himself on April 28, 1998, when he fell backwards over a pallet of chocks while exchanging a broken banding machine. Defendant determined that Freudenthaler acted in an unsafe manner in that he was not paying attention to his surroundings. Defendant issued a formal reprimand to Freudenthaler. Pursuant to the collective bargaining agreement covering Defendant and Freudenthaler, the formal reprimand was removed from Freudenthaler's employee file after 18 months with no additional disciplinary action.

In February, 1999, plaintiff Van Touch ("Touch") injured his hand when he attempted to remove a piece of polyethylene from the chill roller of an extruder without turning off the machine. Touch, who had previously received a formal reprimand for violation of poor work performance/unsafe behavior, was issued a final reprimand and was suspended for a week on April 27, 1999. In November 1999, Touch was again reprimanded for cleaning a plate cylinder with a shop rag wrapped around his finger while the machine was moving. Defendants determined that Touch had engaged in unsafe work behavior and issued Touch another final reprimand without suspension for the violation. Touch quit his job with Defendant in the summer of 2000.

Rule 56 of the Federal Rules of Civil Procedure allows the granting of summary judgment:

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). "[T]he requirement is that there be no genuine issue of material fact." Anthes v. Transworld Systems, Inc., 765 F. Supp. 162, 165 (Del. 1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)) (emphasis in original).

The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is absent. Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant has met its burden, the onus is on the nonmovant to establish there is a genuine issue of material fact. Id. at 324. In order to meet this burden, the nonmovant "may not rest upon the mere allegations or denials of [its] pleadings," but must instead "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324.

An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. On the other hand, if after the court has drawn all reasonable inferences in favor of the nonmoving party, "the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).

Plaintiffs have asserted claims under O.R.S. 659.410 for retaliation by their employer based on their filing of workers' compensation claims. As noted by Defendant, "[c]ase law developed by the federal courts interpreting Title VII of the Civil Rights Act of 1964 can be used to interpret Chapter 659 of the Oregon Revised [Statutes] because the statutory schemes are similar and Chapter 659 or the Oregon Revised Statutes is patterned after Title VII." See Vaughan v. Pacific N.W. Bell Tel. Co., 289 OR. 73, 91 (1980).

To succeed on their retaliation claims, Plaintiffs must first establish a prima facie case. Trent v. Valley Elec. Ass'n, Inc., 41 F.3d 524, 526 (9th Cir. 1994) (citation omitted). Each Plaintiff must demonstrate: "(1) that he was engaging in a protected activity, (2) that he suffered an adverse employment decision; and (3) that there was a causal link between his activity and the employment decision." Id. (citation omitted). The primary issue before the court is whether the written reprimands placed in each plaintiff's personnel file qualifies as an "adverse employment decision."

Although retaliation frequently takes the form of dismissal or unfavorable job performance evaluations, the Ninth Circuit has recognized that tangible economic loss is not an essential element of a Title VII retaliation claim. Hashimoto v. Dalton, 118 F.3d 671, 675 (9th Cir. 1997). In Hashimoto, the Ninth Circuit held that a "`personnel action' motivated by retaliatory animus" creates liability under Title VII regardless of whether that action would warrant the award of remedies. Id. Thus, giving a poor job reference to a prospective employer may constitute an adverse employment action even if the reference was not material in the employee not getting the job. Id. The Ninth Circuit reasoned that such an interpretation was necessary to uphold the purposes of Title VII. Id.

Based on Hashimoto, it appears that the Ninth Circuit will view an employment decision to be sufficiently adverse to support a retaliation claim under Title VII if the decision or action has the potential to affect or has affected, in a tangible way, the terms or conditions of a Plaintiff's employment. Here, the reprimands issued by Defendant moved the Plaintiffs one step further in the disciplinary process and placed them closer to termination in the event of future employment problems. The court finds that this action had the potential to affect the Plaintiffs' employment and, as such, was an adverse employment action.

A second issue raised in Defendant's motion for summary judgment against Touch is the absence of a causal link between Touch filing a workers' compensation claim and Defendant's issuance of a final reprimand. In his deposition, Touch admitted that it was unsafe to clean the chill roller while the machine was running and that Defendant had a right to suspend him. However, he felt that the reprimand put his job on the line and was too harsh. By admitting that Defendant had grounds to punish him for unsafe behavior, Touch eliminates any causal link between his workers' compensation filing and his reprimand.

In an affidavit filed in opposition to Defendant's summary judgment motion, Touch states that he misunderstood the questions at his deposition and that he answered a number of questions based on his understanding that Defendant thought his actions were unsafe. He then refers to a portion of his deposition where he tries to explain what he really meant to say. In that portion, he states that he thought it was safe to clean the "plate cylinder with a shop rag wrapped around his finger" and that was the way he had been trained to do it. Touch argues that this evidence establishes the absence of a safety violation to support his reprimand and creates the necessary link between the workers' compensation claim and the reprimand.

"The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Kennedy v. Allied Mutual Insurance Co., 952 F.2d 262, 266 (9th Cir. 1991) (citing Foster v. Arcata Associates, 772 F.2d 1453, 1462, (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986); Radobenko v. Automated Equip. Corp., 520 F.2d 540, 543-44 (9th Cir. 1975)). "If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Id. However, before applying the general rule a court should first determine that the contradiction was actually a sham.

It is evident from a careful reading of all the material provided the court that Touch has confused the February 1999 incident presently at issue with the October 1999 incident. In his affidavit, Touch refers to the October 1999 accident based on his attempt to clean a plate cylinder with a shop rag wrapped around his finger and then asserts that his deposition testimony on this incident explains away his earlier admission that his attempt to remove polyethylene from the chill roller with the help of a glove in February 1999 was unsafe. The fact that he thought he was acting pursuant to Defendant's instructions in October 1999 is not relevant to his admission that he was acting in an unsafe manner in February 1999.

Similarly, Touch's testimony throughout the deposition was inconsistent and sometimes confusing. While Touch originally testified that he thought Defendant was justified in suspending him, he later stated that Defendant should not have suspended him because they didn't suspend anyone else. Additionally, when questioned by his own counsel on the second day of depositions, Touch explained he had previously stated that he acted in a unsafe manner in February 1999 because that was what the company was saying but that he did not think it was unsafe at the time he was doing it.

The court finds no deposition evidence directly contradicting Touch's statement that he acted in an unsafe manner in February 1999 or that Defendant had a right to discipline him for his actions. His statement that he did not think it was unsafe to attempt to remove the polyethylene at the time he was doing it does not contradict his statement that is was safer to turn the machine off before removing the polyethylene. Similarly, Touch's statement that he did not think it was fair that he was suspended when no one else was suspended does not negate his statement that Defendant had the right to suspend him based on his unsafe behavior. To the extent the affidavit contradicts Touch's prior deposition testimony, the court finds that Touch's affidavit is a sham, was prepared solely to create a genuine issue of material fact to avoid summary judgment and should be disregarded.

In light of the lack of contradictory evidence and In the absence of the affidavit, the

record is clear that Touch knew that his attempt to remove the polyethylene from the chill roller was unsafe and that Defendant had reasonable grounds to both reprimand and suspend him. Touch has failed to establish a prima facie claim for retaliation.

Defendant's motion (34) for summary judgment should be DENIED with regard to Freudenthaler and should be GRANTED with regard to Touch. The evidence contained in Touch's affidavit, Touch's second deposition or Olson's affidavit was either not considered or was not outcome determinative. Accordingly, Defendant's have not been prejudiced in any way by the evidence it seeks to strike and Defendant's motion to strike should be DENIED as moot.

Objections to these Findings and Recommendation(s), if any, are due September 20, 2000. If no objections are filed, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.

If objections are filed, the response is due no later than October 4, 2000. When the response is due or filed, whichever date is earlier, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement.