Holmes v. Willamette University

971 P.2d 914, 157 Or. App. 703, 1998 Ore. App. LEXIS 2284

• Court: Court of Appeals of Oregon
• Decided: December 23, 1998
• Docket: 9507-05266; CA A95864
• Status: Published

Opinions

HASELTON, J.

Plaintiff appeals from a summary judgment dismissing his claims of unlawful employment discrimination, ORS 659.425, and breach of contract against his former employer, defendant Willamette University. We conclude that the trial court correctly dismissed plaintiffs breach of contract claim but erred in dismissing his claim that defendant failed to reasonably accommodate his alcoholism. Accordingly, we reverse and remand.

Viewed most favorably to plaintiff, the nonmovant,¹ the record discloses the following material facts:

In 1989, defendant hired plaintiff to teach at its law school. When defendant hired plaintiff, it knew that he was a chronic alcoholic. Between January 1989 and January 1993, plaintiff did not drink in any way that affected his job performance.

Between January and March 1993, plaintiff suffered relapses, resulting in binge drinking. As a result of those binges, plaintiff missed two classes, which he later made up, and an important faculty meeting. Even with those absences, plaintiffs attendance was one of the best, if not the best, on the Willamette Law School faulty.

After a relapse in March 1993, law school administrators, in conjunction with plaintiffs counselor, participated in an “intervention.” As a result of that intervention, in April 1993, plaintiff was presented with, and signed, a “last chance agreement.” The agreement provided, inter alia, that plaintiff would completely abstain from using alcohol and controlled substances, would undertake a course of treatment, including participating at his own expense in in-patient treatment at Springbrook Northwest, a facility in Newberg, beginning in June 1993, and would cooperate in ongoing monitoring. The agreement also provided that “any breach” of the agreement would be deemed “to be professional irresponsibility and shall cause immediate initiation of Termination or Dismissal proceedings,” pursuant to defendant’s personnel policies and procedures. The applicable provisions of defendant’s personnel rules are those in Policy X.G (“Policy G”), relating to termination after tenure. Policy G sets forth grounds for termination, including disability, along with certain procedural rights that the affected faculty member may invoke. Plaintiff remained sober and performed his duties without incident until the end of the school year.

In early June, after the end of the school year, Holmes entered in-patient treatment at Springbrook pursuant to the “last chance” agreement. After receiving 30 days’ treatment, but before completing the in-patient program, plaintiff, with his physician’s consent, left Springbrook to be with his 12-year-old son during a period of great distress in plaintiffs marriage. Plaintiff agreed to return to Springbrook on July 19.

Plaintiff did not return to Springbrook on July 19 because his wife had left him and he had no one to take care of his son. Plaintiff contacted his Willamette monitor under the “last chance” agreement about his inability to return to Springbrook and understood that the monitor would contact Springbrook. A few days later, some time between July 20 and July 25, plaintiff suffered another relapse. When Willamette administrators learned that plaintiff was not at Springbrook and that he had suffered a relapse, they informed plaintiff that he was in violation of the “last chance” agreement and insisted that he return to Springbrook or be terminated from his employment.

On July 27, plaintiff returned to Springbrook, where he was reevaluated by staff. Springbrook declined to readmit plaintiff, concluding, in part, that continued treatment would be unsuccessful because, given plaintiffs family-related problems, “he could not stay focused if he was still in the area.” Plaintiffs treating physician, Dr. Byrd, testified that he and the other members of the Springbrook staff “felt [plaintiff] was still treatable, but that he needed to be transferred to the ‘COPAC’ facility in Jackson, Mississippi.” That is, that plaintiff needed to be “in a different environment.”

On July 29, plaintiff met with Dr. Byrd and two law school deans. Byrd explained his recommendation for continued treatment at COPAC. The deans then told plaintiff that he was being terminated from his employment and that termination was in his best interest so that he could pursue treatment at COPAC. Plaintiff then asked for a one-year unpaid leave of absence from the law school so that he could retain his position while pursuing his treatment at the COPAC facility. The deans rejected that request, repeating that plaintiff was “officially terminated now.”

On August 2, 1993, plaintiff submitted his written resignation to defendant’s president. By letter of the same date, the president accepted the resignation, effective at the end of the 1993-94 academic year, with plaintiffs salary to continue through that time. In the president’s letter, plaintiff was asked to “vacate [his] office before school begins this fall” and to sign at the bottom of the letter to “affirm” his acceptance of “this agreement.” He never signed as directed. Nevertheless, defendant paid plaintiff his salary through the time specified in the president’s letter.

Other Willamette professors covered Holmes’s projected class-load for the ensuing 1993-94 academic year. Willamette presented no evidence of any additional costs or “hardship” that it incurred, or would have incurred, if it had acquiesced in Holmes’s request for a leave of absence.²

In 1995, plaintiff brought this action, alleging that (1) defendant had violated ORS 659.425 by failing to reasonably accommodate his alcoholism; and (2) defendant had breached its employment contract with plaintiff. The trial court, in various proceedings, allowed dispositive motions for summary judgment against both of those claims. In particular, the trial court concluded that, as a matter of law, defendant had reasonably accommodated plaintiffs alcoholism and that plaintiffs letter of resignation precluded his breach of contract claim. On appeal, plaintiff challenges both of those dispositions, and we consider each in turn.

Plaintiffs employment discrimination claim is based on ORS 659.425(l)(a), which provides that it is an unlawful employment practice for an employer to discharge an employee on the basis of “a physical or mental impairment which, with reasonable accommodation by the employer, does not prevent the performance of the work involved.” Before addressing the particulars of plaintiffs “reasonable accommodation” analysis, we must consider defendant’s threshold argument that ORS 659.475(1) does not apply because plaintiff resigned from his employment and, thus, was not “discharged” within the meaning of the statute. Plaintiff responds that, on this record, there are, at least, disputed issues of material fact as to whether he was effectively confronted with a “resign or be discharged” situation and, thus, was “constructively discharged” for purposes of his statutory claim. Sheets v. Knight, 308 Or 220, 226-27, 779 P2d 1000 (1989). We agree with plaintiff that the record is reasonably, albeit not necessarily, susceptible to a reading that plaintiff was constructively discharged before he tendered his resignation.³ Accordingly, summary judgment cannot be affirmed on that ground.

With that matter resolved, the dispositive issue, for purposes for plaintiffs statutory claim under ORS 659.425(l)(a), is whether, applying the criteria of OAR 839-06-245(2) (1991), plaintiffs request for a one-year leave of absence to participate in out-of-state medical treatment of his alcoholism was a “reasonable accommodation.” Even more narrowly, because this is an appeal from a summary judgment for defendant, the issue is whether, on this record, any reasonable juror could resolve that issue in plaintiffs favor.⁴

ORS 659.425(l)(a) (1993)⁵ read as follows:

“For the purpose of ORS 659.400 to 659.460, it is an unlawful employment practice for any employer to refuse to hire, employ or promote, to bar or discharge from employment or to discriminate in compensation or in terms, conditions or privileges of employment because:

“(a) An individual has a physical or mental impairment which, with reasonable accommodation by the employer, does not prevent the performance of the work involved.” (Emphasis added.)

Active alcoholism is a “physical or mental impairment” within the meaning of ORS 659.425(l)(a) (1993). Braun v. American International Health, 315 Or 460, 467-69, 846 P2d 1151 (1993).

OAR 839-06-245 (1991) defined an employer’s duty to reasonably accommodate an employee’s physical or mental impairment:

“ORS 659.425 imposes an affirmative duty upon an employer to make reasonable accommodation for an individual’s physical or mental impairment where the accommodation will enable that individual to perform the work involved in the position occupied or sought:

“(1) Accommodation is a modification or change in one or more of the aspects or characteristics of a position including but not limited to:

“(a) Location and physical surroundings;

“(b) Job duties;

“(c) Equipment used;

“(d) Hours, including but not limited to:

“(A) Continuity (extended breaks, split shifts, medically essential rest periods, treátment periods, etc.); and

“(B) Total time required (part-time, job-sharing).

“(e) Method or procedure by which the work is performed.

“(2) Accommodation is required where it does not impose an undue hardship on the employer. Whether an accommodation is reasonable will be determined by one or more of the following factors:

“(a) the nature of the employer, including:

“(A) The total number in and the composition of the work force; and

“(B) The type of business or enterprise and the number and type of facilities.

“(b) The cost to the employer of potential accommodation and whether there is a resource available to the employer which would limit or reduce the cost. Example: funding through a public or private agency assisting handicapped persons;

“(c) The effect or impact of the potential accommodation on:

“(A) Production;

“(B) The duties and/or responsibilities of other employees; and

“(C) Safety:

“(i) Of the individual in performing the duties of the position without present risk of probable incapacity to him/ herself; and

“(ii) Of co-workers and the general public if the individual’s performance, with accommodation, does not present a materially enhanced risk to co-workers or the general public (See OAR 839-06-230).

“(d) Medical approval of the accommodation; and

“(e) Requirements of a valid collective bargaining agreement including but not limited to those governing and defining job or craft descriptions, seniority, and job bidding, but this rule shall not be interpreted to permit the loss of an individual’s statutory right through collective bargaining.

“(3) A handicapped person who is an employee or candidate for employment must cooperate with an employer in the employer’s efforts to reasonably accommodate the person’s impairment. A handicapped person may propose specific accommodations to the employer, but an employer is not required to accept any proposal which poses an undue hardship. Nor is the employer required to offer the accommodation most desirable to the handicapped person, except that the employer’s choice between two or more possible methods of reasonable accommodation cannot be intended to discourage or to attempt to discourage a handicapped person from seeking or continuing employment.”

See Braun, 315 Or at 472 (The legislative history of ORS 659.425(l)(a) “reveals that the legislature chose to leave development of the concept of‘reasonable accommodation’ to the Bureau of Labor and Industries in its administrative rules.”).

On this record, and applying the criteria of OAR 839-06-245(2) (1991), a jury could reasonably determine that plaintiffs request for an unpaid leave of absence, for a specified period, to address his alcoholism constituted a “reasonable accommodation.” In particular, a jury could find that plaintiffs request was reasonable in that: (1) Plaintiff had never taken a leave of absence during the academic year for treatment purposes. (2) Plaintiff participated in treatment at Springbrook at defendant’s express direction pursuant to the “last chance agreement.” (3) Springbrook medical staff — the same staff to whom defendant had referred plaintiff — recommended and endorsed his participation in the COPAC program which, necessarily, required a leave of absence. (4) Specifically, plaintiffs physician at Springbrook testified that plaintiffs participation in the COPAC program would not be futile — that plaintiff was “treatable” at COPAC. (5) Defendant demonstrated no hardship — additional expense or significant disruption of the law school’s operations — that would have resulted from acquiescing in plaintiffs request. Given those facts, there is, at least, a genuine issue of material fact as to “reasonable accommodation.”

Schmidt v. Safeway Inc., 864 F Supp 991 (D Or 1994), is illustrative. There, the plaintiff, who had worked as a truck driver for Safeway, asserted that Safeway’s refusal to grant his request for unpaid leave to obtain treatment for his alcoholism constituted a failure to provide a reasonable accommodation under both the Americans with Disabilities Act and ORS 659.425. The plaintiff moved for summary judgment on the “reasonable accommodation” issue and on the defendant’s “undue hardship” defense, and the court granted that motion:

“[A] leave of absence to obtain medical treatment is a reasonable accommodation if it is likely that, following treatment, plaintiff would have been able to safely perform his duties as a truck driver. An employer is not required to offer an accommodation that is likely to be futile because, even with the accommodation, the employee could not safely and efficiently perform the essential functions of the job. Thus an employer would not be required to provide repeated leaves of absence (or perhaps even a single leave of absence) for an alcoholic employee with a poor prognosis for recovery. * * *

“Ordinarily, the reasonableness of an accommodation is an issue for the jury. In this case, defendant’s own Medical Review Officer (‘MRO’) advised defendant that plaintiff ‘should be an excellent employee after he finishes treatment’ and recommended ‘he be considered on medical leave until he completes treatment and then he can certainly return to his regular job.’ * * * Thus there is no factual dispute for the jury to resolve, and plaintiff is entitled to partial summary judgment on this issue as a matter of law. The employer may still have other defenses in a specific case. I will consider those separately.

* * * *

“Defendant argues it was not required to provide a leave of absence to plaintiff because that would have imposed an undue hardship on the company. Undue hardship is an affirmative defense to a failure to provide reasonable accommodation under both the ADA and its Oregon counterpart. 42 U.S.C. § 12112(b)(5)(A); OAR 839-06-245. However, defendant offers no evidence of any economic impact upon the company or disruption of its operations. Rather, defendant argues that granting a leave of absence to plaintiff in lieu of termination would undermine its substance abuse deterrence program. That is not the sort of hardship the statute envisions. * * *” 864 F Supp at 996-97.

Thus, the court in Schmidt, granted plaintiff summary judgment on evidence that, at least in part, approximates the evidence presented here. Here, as in Schmidt, the physicians to whom the employer referred the employee (in Schmidt, the Medical Review Officer; here, Dr. Byrd at Springbrook) recommended the unpaid leave of absence for treatment. Here, as in Schmidt, “defendant offers no evidence of any economic impact upon * * * or disruption of its operations.” 864 F Supp at 997.

We thus conclude that, applying the controlling criteria of OAR 839-06-245 (1991), plaintiffs “reasonable accommodation” claim raises triable issues of material fact.

The dissent, in reaching the contrary conclusion, relies exclusively on Braun and, particularly, on Brawn’s general observation that ORS 659.425(l)(a) imposes a less rigorous burden of “reasonable accommodation” than that imposed on the federal government, as an employer, under section 501 of the Federal Rehabilitation Act. See 157 Or App at 717. Although the dissent asserts that “the analogy [to Braun] is strong,” id. at 716 n 1, the context in which Braun offered that dictum was materially different. Braun's observations in that regard were made solely in context of addressing a narrow certified question: Whether under Oregon law, as under the Federal Rehabilitation Act, it is “an unlawful employment practice * * * to discharge from employment an alcoholic employee whose present use of alcohol prevents her from performing the duties of her job, if that employee denies having any problem with alcohol?” 315 Or at 462. That question is inapposite here: Plaintiff freely acknowledged his alcoholism and was seeking treatment for that condition.

Most significantly, after noting that the Oregon legislature “did not intend to impose on Oregon employers the same high standards that the federal government imposes on itself, including the requirement that an employer accommodate an employee based on mere suspicion of an impairment,” Braun went on to say:

“Legislative history reveals that the legislature chose to leave development of the concept of‘reasonable accommodation’ to the Bureau of Labor and Industries in its administrative rules. Minutes, House Committee on Labor, June 18, 1979, p 1.” 315 Or at 472 (emphasis added).

Those “administrative rules” are the “reasonable accommodation” criteria of OAR 839-06-245(2) (1991). The dissent makes only one passing reference to those criteria and does not explain why, under those criteria, no reasonable juror could conclude that plaintiffs request for unpaid leave was a “reasonable accommodation.”

Braun, at most, offers dictum in a materially different context. Conversely, OAR 839-06-245(2) (1991) expressly prescribed the factors that must be applied in every “reasonable accommodation” case under ORS 659.425(1). See OAR 839-06-245(2) (1991) (“whether an accommodation is reasonable will be determined by one or more of the following factors * * *”) (emphasis added). Because, on this record, the application of those controlling criteria raises triable issues of material facts, the court erred in entering summary judgment against plaintiffs reasonable accommodation claim.

Turning to plaintiffs breach of contract claim, that claim is necessarily dependent on the premise that defendant discharged him. In contrast to the analysis with respect to the statutory discrimination claim, however, see 157 Or App at 708 n 3, plaintiffs constructive discharge theory does not assist him with respect to the breach of contract. Indeed, plaintiffs resignation is decisive in defendant’s favor.

Sheets and the later Oregon appellate decisions, where the constructive discharge doctrine was formulated and applied, have generally or invariably dealt with common law or statutory wrongful discharge claims. We do not foreclose the possibility that — nor do we decide whether — the doctrine might ever be applicable to a claim in which the gravamen is the breach of an employment contract. However, the doctrine cannot apply under the evidence in this case which, when viewed most favorably to plaintiff, demonstrates that the alternative to resigning that defendant gave plaintiff was that the applicable termination provisions of the contract, viz. Policy G, would be invoked. Unlike the ORS 659.425 claim, where the resignation in lieu of termination could arguably have coincided with a violation of the statute, the contractual termination provisions could not have been breached by the threat that they would be pursued according to their terms unless plaintiff resigned. In the absence of any basis for concluding that the termination provisions of the contract could not have been properly applied to plaintiff under the facts, he cannot demonstrate a breach of the contract by virtue of the fact that his agreement to resign made it unnecessary and impossible for defendant to apply the provisions.⁶

We have considered the parties’ remaining arguments and do not consider further discussion to be warranted. The trial court correctly dismissed the breach of contract claim but erred in dismissing plaintiffs statutory discrimination claim.

Reversed and remanded.

1 See, e.g., Tolbert v. First National Bank, 312 Or 485, 494, 823 P2d 965 (1991).

2 At oral argument on appeal, Willamette argued, for the first time, that it would have been futile to grant Holmes a one-year unpaid leave of absence to undergo treatment at COPAC, because, without drawing pay, he would have been unable to fund his treatment. Holmes responded, also for the first time at oral argument, that that simply was not true — that because of a COBRA-based continuing entitlement to health benefits, he could have gone to COPAC, even if he wasn’t drawing salary as a faculty member. Willamette’s “unpaid leave would have been futile” contention is not properly before us. That argument, which is necessarily factual, was not raised below and is utterly unsupported on the evidentiary record.

3 However, we do not agree with plaintiffs argument that his August 2,1993, resignation was not accepted by defendant or that there is a question of fact as to whether “additional terms” in the president’s letter constituted a counteroffer. Defendant simply agreed to pay plaintiff for one year beyond the cessation of his services and asked him to vacate his office. Arguably, the additional year’s salary was required by defendant’s personnel Policy G, or was at least consistent with it. In any event, it was not an “additional term” as a matter of law. If it was not required by Policy G, it was a gratuity on defendant’s part, for which no consideration from plaintiff was offered or demanded. Similarly, defendant’s insistence that plaintiff vacate his office was not an “additional term.” It was integral to plaintiffs resignation and defendant’s acceptance of the resignation.

We also emphasize here, and will explain at greater length below, that plaintiffs constructive discharge theory could benefit him only in connection with his statutory claim. 157 Or App at 715. It cannot bolster his contractual claim.

4 No Oregon decision appears to have addressed whether “reasonable accommodation” is a question of fact or of law — that is, whether the question of “reasonableness” is innately a jury question or whether, if, the underlying material “historical” facts are uncontroverted, the determination of “reasonableness” is for the court. Here, however, the parties, citing federal case law construing the “reasonable accommodation” provisions of the federal Rehabilitation Act of 1973, 29 USC § 791, and the American with Disabilities Act, 42 USC § 12101 et seq., agree that “reasonableness” is ordinarily a question of fact for the jury. See, e.g., Fuller v. Frank, 916 F2d 558, 562 n 6 (9th Cir 1990) (under Rehabilitation Act, “[wjhether the agency has provided ‘reasonable accommodation’ is ordinarily a question of fact,” and the employer bears the burden of proving inability to accommodate. Where, however, no reasonable jury could return a verdict for the plaintiff, factual dispute is not “genuine” and summary judgment is appropriate.); Schmidt v. Safeway Inc., 864 F Supp 991, 997 (D Or 1994) (“Ordinarily, the reasonableness of an accommodation is an issue for the jury.”). Given the way in which the parties have framed the issue, we accept that formulation.

5 The former version of ORS 659.425(l)(a) was in effect at all material times. That statute and its implementing regulations have since been significantly amended. In particular, ORS 659.425(1) was significantly changed in 1997. Or Laws 1997, ch 854, § 13. Also in 1997, Oregon adopted new provisions relating to disability discrimination in employment under ORS 695.436 through ORS 659.449. Or Laws 1997, ch 854, §§ 2-11. Those provisions specifically provide that they “shall be construed to the extent possible in a manner that is consistent with any similar provisions of the federal Americans with Disabilities Act of 1990, as amended.” Or Laws 1997, ch 854, § 11.

The version of ORS 659.425(1) that applies in this case was enacted before the enactment of the Americans with Disabilities Act and was modeled after the Rehabilitation Act of 1973, sections 503 and 504. See OSCI v. Bureau of Labor and Industries, 98 Or App 548, 553 n 6, 780 P2d 743 (1989).

6 Our reasoning in this connection is somewhat analogous to the Supreme Court’s conclusion on another issue in Sheets. The court held there that, although a wrongful discharge claim can sometimes arise out of the termination of an at-will employment, such a termination cannot be actionable as a breach of the implied covenant of good faith and fair dealing because no implied duty can arise to desist from performing in a manner that the terms of the contract expressly allow. Similarly, the “resign or be fired” rationale may be a basis for a finding of constructive discharge, but it cannot in itself establish a breach of an employment contract where the employer has a right to pursue termination procedures and where the call for the employee’s resignation is not in itself contrary to the contractual termination procedures.