
    Mark McCAULEY, Plaintiff, v. ASML US, INC., a foreign corporation, Defendant.
    No. 3:11-CV-01554-BR.
    United States District Court, D. Oregon.
    Jan. 9, 2013.
    
      Ralph F. Rayburn, Beaverton, OR, for Plaintiff.
    Amy Joseph Pederson, Andrea H. Thompson, Portland, OR, for Defendant.
   OPINION AND ORDER

BROWN, District Judge.

This matter comes before the Court on Plaintiff Mark McCauley’s Motion (#25) for [Partial] Summary Judgment and Defendant ASML U.S. Inc.’s Motion (# 30) for Partial Summary Judgment. For the reasons that follow, the Court DENIES Plaintiffs Motion and DENIES Defendant’s Motion.

BACKGROUND

The following facts are undisputed unless otherwise noted.

In February 1998 Silicon Valley Group hired Plaintiff Mark McCauley as a CS Supervisor. Defendant ASML US, Inc., acquired Silicon Valley Group in 2000 and retained Plaintiff as a CS Supervisor. Scott Kistler was Plaintiffs supervisor when he was employed by Silicon Valley Group and by Defendant.

In his position as CS Supervisor, Plaintiff received annual performance reviews that awarded point scores in each of several categories yielding a cumulative total. Employees’ performance could be rated as unclassified (0-9 points), unsatisfactory (10-24 points), below requirements (25-34 points), meets requirements (35-44 points), above requirements (45-54 points), or outstanding (55 points or above). From 1998 to 2008 Plaintiffs performance reviews were conducted and scored by Kistler. In 2005, 2006, and 2007 Plaintiff received cumulative scores of 45 or 46 points and a total performance rating of “above requirements.” In 2008 Plaintiff received a cumulative score of 44 points for a total performance rating of “meets requirements.”

In 2008 Plaintiff supervised a number of ASML on-site engineers who worked at two Intel sites: Fab 20 and D1C. In mid-2009 Fab 20 closed, and Plaintiff supervised only the ASML on-site engineers at the D1C site.

In March 2009 Gregory Cole became the Regional Customer Support Manager in the Hillsboro, Oregon, area and Plaintiffs supervisor. Gary Mellville, Defendant’s Director of Customer Support for the Western United States, testified at deposition that he removed Kistler as Defendant’s Regional Customer Support Manager in the Hillsboro area because “the performance of the equipment at the Intel site wasn’t meeting expectation. And [Defendant] needed to have a change to set up some structure to be able to operate in a ... new product environment.” Deck of Amy Joseph Pedersen, Ex. 14 at 2.

Cole testified at deposition that he changed several operating procedures when he became the Regional Customer Support Manager, including approval of overtime. Specifically, Cole testified Kistler generally had not restricted overtime by engineers. Cole’s policy, “especially in 2009[and] when we were in a serious [economic] downturn, was that prior to working any ... overtime the engineers had to get approval.” Deck of Ralph Rayburn, Ex. C at 6. “During the worst of the downturn,” Cole asked supervisors to get approval from Cole personally before approving engineers to work overtime. Rayburn Deck, Ex. C at 6-7.

In 2009 ASML’s service contract with Intel changed for the D1C site and the number of ASML engineers working at the D1C site decreased.

On January 30, 2010, Cole conducted and scored Plaintiffs 2009 performance evaluation and gave Plaintiff a cumulative score of 35 points for a total performance rating of “meets requirements.”

In November 2010 Plaintiff attended Defendant’s supervisor training in Tempe, Arizona, that included a Managers Workshop led by Lindsey Owen, a Human Resources Representative. During the workshop Plaintiff was involved in a heated argument with another manager, Pete Moring. Owen reported Plaintiff told Moring “don’t come to Hillsboro,” which Owen perceived as a threat by Plaintiff. As a result, Owen contacted Plaintiff about being coached on appropriate, professional communication. At Owen’s direction, Plaintiff sent Moring an apology on December 3, 2010, in which Plaintiff stated in pertinent part:

Hoping that you’ll accept my apology for the poor behavior and choice of words that I used responding to your input during our Managers Work Shop, Wed. (Nov-3rd).
Wanted to let you know that it’s not normal for me to lash out the way I did. I put a lot of energy into maintaining a constructive working relationship and build up the self-esteem of all co-workers.

Pederson Decl., Ex. 11.

On December 16, 2010, a tool at DIG stopped working. The tool was down for weeks and resulted in an “escalation” at the site and a number of complaints to Cole by Robert Lindstedt, Intel’s Lithography Department Area Manager in D1C.

On January 13, 2011, Defendant held a “post-mortem” meeting with Intel to discuss the December 2010 escalation. Plaintiff, Cole, Mellville, and Lindstedt, among others, attended the meeting. Mellville testified at deposition that he had concerns about Plaintiffs performance at the postmortem meeting. In particular, Mellville believed there were inaccuracies in the materials presented by Plaintiff, Plaintiff attempted to discuss irrelevant issues, and Plaintiff “kept wanting to drill into a lot of detail, which seemed to be inappropriate.” Pedersen Decl., Ex. 14 at 5.

At some point Mellville communicated to Cole that he was unhappy with Plaintiffs performance at the post-mortem meeting, he did not believe Plaintiff had been well-prepared, he was

embarrassed by [Plaintiffs] reactions to the meeting, and ... [Cole] needed to work with [Plaintiff] to get him into an idea of understanding how to answer the questions that a customer is asking without diving into details. And basically not pleased with the overall performance of the post-mortem event itself.

Pedersen Decl., Ex. 14 at 6. At deposition Mellville concluded Plaintiff “could have performed admirably during the escalation, but there was no admirably during the post-mortem review with the customer.” id

On January 14, 2011, Owen emailed Cole and inquired about the “status of the McCauley documentation.” Pedersen Decl., Ex. 15. In particular Owen requested Cole to provide “information regarding any performance or coaching discussions [Cole] had with [Plaintiff] in 2010, [Plaintiffs] 2010 review, and the documentation on the customer complaints.” Id

On January 18, 2011, Cole forwarded to Owen an email complaint from Intel related to an issue at DIG and noted:

I hate building pearl harbor files, but this part is still not at the fab and all I am getting is excuses. This illustrates the lack of effective planning and/or no sense of urgency [by Plaintiff].... I have other examples from over the year if I ever get the time.... I had to put another engineer in charge of getting this done.

Pedersen Decl., Ex. 16.

On January 19, 2011, Cole wrote an email to the file in which he noted:

Today, during a call with D1C, [Plaintiff] attempted to bring up what he felt was an issue with the way passdown was done this morning. His attempt was to lodge a complaint and inform Intel this was not how ASML would agree to do passdowns. I stopped this attempt and tried to discuss with [Plaintiff] ... that this was not the audience nor the time.... He did not seem to understand that his attempt to bring controversy into an already intense escalation was inappropriate.

Pedersen Decl., Ex. 17.

On January 24, 2011, Plaintiff submitted a Time Off Request (TOR) form to Cole requesting vacation time for the week of February 15, 2011, and noting “time off is needed to provide medical care.”

On January 29, 2011, Cole conducted and scored Plaintiffs 2010 performance evaluation and gave Plaintiff a cumulative score of 35 points for a total performance rating of “meets requirements.” Cole, however, noted with respect to “customer interface/communication,” Plaintiff

needs to improve in this area and needs attention on this. He does not come across very professionally to the customer, does not instill a sense of confidence when relating information and updates. Mark also needs to work on instilling a sense of urgency when escalations come up. The customer does net feel that [Plaintiff] portrays this urgency and has commented such on numerous occasions. He also needs to make sure his responses are appropriate to the Issues being discussed and keep emotions out of the discussion.

Rayburn Decl., Ex. B at 44. As to service administration, Cole noted Plaintiff “also needs to work on this area. His weekly notes for the site need to be simplified and he should insure that he has updates and knows the material prior to meetings.” Rayburn Deck, Ex. B at 45. Cole also noted Plaintiff “quite often delays his work on important tasks until the last minute which only serves to increase his stress level” and needed to work on “[rjealizing that there are times when controversial subjects should be left for another time.” Rayburn Decl., Ex. B at 47.

On January 29, 2011, Plaintiff made several comments in his log book related to his 2010 performance evaluation that included 17 points on which he believed his performance evaluation was incorrect.

On January 31, 2011, Cole emailed Owen and advised her that Defendant received a complaint from Intel regarding Plaintiff in which Intel communicated:

1. [Plaintiff] does not display a sense of urgency when serious issues arise.
2. That escalations do not happen until I get involved.
* * *
3. That they do not have confidence in [Plaintiff] or his ability to supervise the site.

Pedersen Decl., Ex. 20. Cole noted he did not disagree with most of Intel’s complaints; for example, “the recent post mortem report ... was very late and had to be rushed to complete because the report had to be essentially rewritten. I also have little confidence in the reports or information I am receiving from [Plaintiff].” Id.

Plaintiff called in sick to work and left messages for Cole to that effect from January 31, 2011, through February 3, 2011. On February 4, 2011, Plaintiff provided Cole with a note from his doctor explaining that Plaintiff should be excused from work from January 31 to February 3, 2011, due to issues with Plaintiffs medications. On February 4, 2011, Plaintiff resubmitted to Cole his TOR form by email for the week of February 14, 2011. Plaintiff also submitted a TOR form in the same email for vacation time from March 28, 2011, to April 8, 2011. Cole approved Plaintiffs request for time off during the week of February 14, 2011.

On February 8, 2011, Owen emailed Cole and requested they discuss the comments that Plaintiff put in his log book. Owen noted

[i]n looking at the development pipeline it seems as though [Plaintiff] doesn’t have insight into the big picture nor his performance. Also, he doesn’t seem to take accountability for what he has control over and his role in his position. What are your thoughts on his 17 points? What is his responsibility in these issues?

Pedersen Decl., Ex. 8 at 1.

On February 11, 2011, Cole sent Plaintiff an email providing responses to Plaintiffs comments in his log book. Cole concluded “there seems to be a disconnect between what [Plaintiff] sees as the normal job requirements for a supervisor and what ASML expects. We will sit to discuss this further and develop a performance improvement plan for yourself.” Pedersen Decl., Ex. 7 at 3.

On February 17, 2011, Cole drafted a Performance Improvement Plan (PIP) for Plaintiff that addressed four areas of concern and included six specific ways in which Defendant expected Plaintiff to improve his performance. Cole concluded

This situation ... has become very serious and a concerted effort on your part is necessary. Please assist ASML in helping improve your performance to the level where the current high-level of oversight is not required. Failure to show immediate and sustained improvement will result in additional corrective action up to and including termination. We will meet again in thirty days on March 28 to review your progress.

Pedersen Decl., Ex. 5 at 2.

Cole approved Plaintiffs TOR request for the week of February 15, 2011. Accordingly, Plaintiff was out of the office from February 15, 2011, until February 21, 2011, and returned to work February 22, 2011.

On February 22, 2011, Plaintiff submitted an updated TOR form that included a range of “best/worst case” dates in March/ April 2011 and noted he might “have to use sick time.” Rayburn Deck, Ex. B at 184-85.

On February 23, 2011, Cole met with Plaintiff to discuss Plaintiffs TOR for time off in March and April 2011. Cole testified at deposition that he asked Plaintiff why he needed the time off, clarified that Plaintiff was requesting time off to undergo medical testing, and requested more concrete dates so Cole could plan around Plaintiffs absence. Plaintiff testified at deposition that he felt Cole was interrogating him about the reason for his TOR and his medical condition and began “to undergo medical testing, and requested more concrete dates so Cole could plan around Plaintiffs absence. Plaintiff testified at deposition that he felt Cole was interrogating him about the reason for his TOR and his medical condition and began “to belittle” Plaintiff by yawning and pretending to have a hard time staying awake. Rayburn Deck, Ex. A at 30.

On Friday, February 25, 2011, Cole met with Plaintiff to discuss the PIP plan. Plaintiff testified at deposition that Cole never gave him a copy of the PIP. Cole, in turn, testified at deposition that he attempted to provide Plaintiff with a copy of the PIP, but Plaintiff refused to take it. It is undisputed that the meeting became heated and both Plaintiff and Cole raised their voices. Cole ended the meeting without completing any review of the PIP.

On February 25, 2011, Cole sent an email to Owen:

I attempted to discuss the [PIP] this afternoon with [Plaintiff]. He got very animated a number of times during the conversation and I finally had to bring the discussion to a halt because [Plaintiff] was getting too excited for a positive conversation. It is clear that [Plaintiff] does not recognize that his performance is sub-par.
I have had these conversations with a number of employees over the years. They are never pleasant, but I have never been in a situation where we could not calmly discuss the program .... I have never had to call a halt to the proceedings, this is the second time I have had to do this with [Plaintiff] (also during his 2009 review). Considering the incident in Tempe, added to my experiences with [Plaintiff], I do not see a reason why we should attempt to proceed with the PIP. It is clear that [Plaintiff] is not at all open to participating in an improvement program nor does he seem willing to be recognize [sic] their [sic] being any need for such a program. I may make another attempt on Monday when he has had a chance to cool off, I don’t feel there is much chance the results will be much different. I feel that we will have to move forward with termination.

Pedersen Decl., Ex. 6.

On February 25, 2011, Owen forwarded Cole’s email to Cindy Wood and noted

Greg’s conversation with [Plaintiff] did not go well. [Plaintiff] seems incapable of having a discussion where he is given less than favorable feedback or where he disagrees. What are your thoughts on termination? If he is unwilling to accept the PIP, and improve his performance the[n] I think we need to terminate.

Pedersen Decl., Ex. 25 at 1. Owen also forwarded Cole’s email to Mellville. Mellville responded: “Okay. Termination is the next step. Should do it Monday!” Id. On February 28, 2011, Owen emailed Cole and advised “[Mellville] is ready to term, and would like it to happen today. You should probably have security on site in case [Plaintiff] gets volatile.” Id.

On February 28, 2011, Cole met with Plaintiff in Kistler’s office to terminate him. Kistler and a security guard were also present. Cole terminated Plaintiffs employment, and Plaintiff was escorted from the building.

On November 23, 2011, Plaintiff filed an action in Multnomah County Circuit Court against Defendant asserting claims for violation of the Oregon Family Leave Act (OFLA), Oregon Revised Statutes §§ 659A.171 and 659A.183; violation of the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.; disability discrimination in violation of Oregon Revised Statute § 659A.112; failure to pay overtime in violation of Oregon Revised Statute § 652.150; and wrongful termination.

On September 27, 2012, Plaintiff filed a Motion for [Partial] Summary Judgment seeking judgment as to his claims against Defendant for failure to pay overtime and for violation of OFLA and FMLA.

On October 1, 2012, Defendant filed a Motion for Partial Summary Judgment seeking judgment as to Plaintiffs claim for failure to pay overtime.

STANDARDS

Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Washington Mut. Ins. v. United States, 636 F.3d 1207, 1216 (9th Cir.2011). See also Fed.R.Civ.P. 56(a). The moving party must show the absence of a genuine dispute as to a material fact. Emeldi v. Univ. of Or., 673 F.3d 1218, 1223 (9th Cir.2012). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and point to “specific facts demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.2010) “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.” Id. (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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)(citing Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No.1936, 680 F.2d 594, 598 (9th Cir.1982)).

“A non-movant’s bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment.” F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir.2009) (citation omitted). 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) (citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir.1998)).

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.

PLAINTIFF’S MOTION (#25) FOR [PARTIAL] SUMMARY JUDGMENT

As noted, Plaintiff moves for summary judgment as to his claims against Defendant for violation of FMLA and OFLA and wrongful discharge.

I. Plaintiffs claims for violation of FMLA and OFLA

Plaintiff alleges Defendant both interfered with Plaintiffs ability to take family leave and terminated him in violation of FMLA and OFLA in retaliation for using family medical leave.

A. The Law

FMLA provides it “shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [FMLA].” 29 U.S.C. § 2615(a)(1). When a plaintiff alleges retaliation for exercising his rights under FMLA, the Ninth Circuit has held such a claim is properly analyzed as an interference claim pursuant to 29 U.S.C. § 2615(a)(1). See Liu v. Amway Corp., 347 F.3d 1125, 1135 (9th Cir.2003)(“[T]he statutory and regulatory language of FMLA makes clear that where an employee is subjected to negative consequences simply because he has used FMLA leave, the employer has interfered with the employee’s FMLA leave rights” under § 2615(a)(1).). “In contrast, [when] an employee is punished for opposing unlawful practices by the employer, the issue then becomes one of discrimination and retaliation” under § 2615(a)(2). Liu, 347 F.3d at 1135 (emphasis in original).

As noted, Plaintiff alleges Defendant subjected him to “negative consequences” (i.e., termination) because Plaintiff used FMLA leave. Accordingly, the Court must analyze Plaintiffs claim as one for interference under § 2615(a)(1) of FMLA.

The Ninth Circuit has held the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), does not apply to interference claims under § 2615(a)(1). Liu, 347 F.3d at 1135. When “an employee alleges that his or her FMLA leave is impermissibly considered in the decision to terminate him or her, this Circuit applies the standard set forth by the [Department of Labor (DOL)] in 29 C.F.R. § 825.220(c).” Id.

Under the DOL standard, an employee may prove his employer interfered with the employee’s right to take protected leave by showing “by a preponderance of the evidence that [his] taking of FMLAprotected leave constituted a negative factor in the decision to terminate [him].” This claim, like any ordinary statutory claim, may be proven “by using either direct or circumstantial evidence, or both.” Bachelder v. Am. West Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir.2001).

Ultimately,

[t]o prevail [in a FMLA claim], an employee must prove, as a threshold matter, that the employer violated § 2615 by interfering with, restraining, or denying his or her exercise of FMLA rights. Even then, [the damages provision of FMLA,] § 2617, provides no relief unless the employee has been prejudiced by the violation.

Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002).

B. Analysis

Plaintiff asserts he is ' entitled to summary judgment as to his claims under FMLA and OFLA and points to the fact that he was terminated within weeks of taking time off and requesting further time off for medical reasons. To support his position, Plaintiff states that he believes Cole subjected him to intense questioning as to his request for medical leave and mocked Plaintiff by yawning and pretending to have a hard time staying awake.

Defendant, in turn, contends Plaintiffs leave did not play any part in its decision to terminate Plaintiffs employment. Defendant points to the fact that it received complaints from Intel related to Plaintiffs performance, including the January 2011 email complaint from Intel. Defendant also relies on the Declaration of Roger Lindstedt in which he testifies he advised Cole:

3. My biggest issue with [Plaintiffs] performance was that as ASML’s site manager for D1C, he was not pushing his team to resolve problems quickly and he was not able to marshal the ASMI resources needed to resolve problems. [Plaintiff] was not able to marshal ASML employees with the correct expertise to solve problems with the very expensive equipment Intel purchases from ASML. These shortcomings were particularly obvious in December 2010 and January 2011 in connection with the tool shutdown described in my deposition. However, I had also seen these shortcomings on [Plaintiffs] part in the past.
3. My second issue with [Plaintiffs] performance is that he did not appear strong technically. [Plaintiff] rarely had much to offer from a technical standpoint. If a technical problem or issue was being discussed, he was not able to offer a solution. [Plaintiff] did not contribute to the solution, but frequently had excuses as to why a particular problem was occurring.
5. My third issue with [Plaintiffs] performance was that he was regularly late to meetings. [Plaintiff] was frequently 15 or 20 minutes late to meetings and frequently had excuses, such as he went to the wrong building or the wrong floor or the wrong conference room.

Decl. of Robert Lindstedt at ¶¶ 3-5.

Defendant notes Plaintiff has not established that Human Resources knew Plaintiff had requested time off for medical reasons. . Plaintiff testified at deposition that he “believed” he contacted Owen to notify her about his need for medical leave, but he “was not 100 percent sure.” Owen, however, testified at deposition that she did not know Plaintiff had medical issues or that he had requested time off to address any such issues. Cole also testified at deposition that he did not forward any of Plaintiffs requests for leave to Owen or to anyone else at Human Resources. Accordingly, it is questionable whether Human Resources and/or Owen had any knowledge of Plaintiffs need for medical leave. When evaluating the comments that Plaintiff made in his log book, however, Owen noted:

In looking at the development pipeline it seems as though [Plaintiff] doesn’t have insight into the big picture nor his performance. Also, he doesn’t seem to take accountability for what he has control over and his role in his position.

Pedersen Decl., Ex. 8 at 1.

Defendant also notes it is undisputed that Mellville did not know Plaintiff had requested time off for medical reasons. Nevertheless, Mellville told Cole after the post-mortem meetings that he was unhappy with Plaintiffs performance at the meeting, he did not believe Plaintiff had been well-prepared, and he was

embarrassed by [Plaintiffs] reactions to the meeting, and ... [Cole] needed to work with [Plaintiff] to get him into an idea of understanding how to answer the questions that a customer is asking without diving into details. And basically not pleased with the overall performance of the post-mortem event itself.

Pedersen Decl., Ex. 14 at 6. As noted, Mellville made the final decision to terminate Plaintiff. At deposition Mellville testified he based that decision on Plaintiffs poor performance at the post-mortem, Plaintiffs performance evaluations, and various reports of Plaintiffs behavior (including Plaintiffs heated argument during the training in Tempe).

The Court concludes on this record that Defendant has established a genuine dispute of material fact exists as to whether Defendant subjected Plaintiff to any negative consequences because he requested and took medical leave. Accordingly, the Court denies Plaintiffs Motion for [Partial] Summary Judgment as to Plaintiffs claims that Defendant violated FMLA and OFLA.

II. Plaintiffs claim for wrongful discharge for taking leave for medical reasons.

Plaintiff asserts Defendant wrongfully discharged him for taking medical leave in violation of Oregon public policy.

A. The Law

Under Oregon law “an employer may discharge an employee at any time, for any reason, unless doing so violates a contractual, statutory or constitutional requirement.” Yeager v. Providence Health Sys. Oregon, 195 Or.App. 134, 140, 96 P.3d 862 (2004) (quotation omitted). See also Sheppard v. David Evans and Assoc., 694 F.3d 1045, 1050 (9th Cir.2012)(same). The tort of wrongful discharge is a narrow exception to this general rule. Yeager, 195 Or.App. at 140, 96 P.3d 862.

Oregon courts have recognized two circumstances that give rise to the common-law tort of wrongful discharge: (1) discharge for exercising a job-related right of important public interest and (2) discharge for complying with a public duty. Sheppard, 694 F.3d at 1050-51, n. 3. Examples of the first category include discharge for filing a worker’s compensation claim, Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (1978), and resisting sexual harassment by a supervisor, Holien v. Sears, Roebuck & Co., 298 Or. 76, 689 P.2d 1292 (1984). Examples of the second category include discharge for serving on jury duty, Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975); for reporting patient abuse at a nursing home, McQuary v. Bel Air Convalescent Home, Inc., 69 Or.App. 107, 684 P.2d 21 (1984); and for refusing to sign a false report regarding a fellow employee’s work-related conduct, Delaney v. Taco Time International Inc., 297 Or. 10, 681 P.2d 114 (1984).

To prevail on a claim of wrongful discharge, a plaintiff “must establish a ‘causal connection’ between a protected activity and the discharge.” Estes [v. Lewis & Clark College, 152 Or.App. 372], 954 P.2d [792] at 796-97 [(1998)] (quoting Shockey v. City of Portland, 313 Or. 414, 837 P.2d 505, 507 (1992)). A “causal connection” requires a showing that “the employee’s protected activity [was] a substantial factor in the motivation to discharge the employee.” Id. at 797 (internal quotation marks omitted). “[T]o be a substantial factor, the employer’s wrongful purpose must have been a factor that made a difference in the discharge decision.” Id. (internal quotation marks omitted).

Sheppard, 694 F.3d at 1051.

B. Analysis

Plaintiff contends he was wrongfully discharged for requesting and/or taking medical leave. Plaintiff relies on the same facts and evidence to support his wrongful-discharge claim as he relies on for his FMLA and OFLA claims. For the same reasons that the Court concluded Defendant has established a genuine dispute of material fact exists as to Plaintiffs FMLA and OFLA claims, the Court concludes a genuine dispute of material fact exists that precludes summary judgment as to Plaintiffs claim for wrongful discharge.

Accordingly, the Court denies Plaintiffs Motion for [Partial] Summary Judgment as to Plaintiffs wrongful-discharge claim.

DEFENDANT’S MOTION (# 30) FOR PARTIAL SUMMARY JUDGMENT

Defendant moves for summary judgment as to Plaintiffs claim against Defendant for failure to pay overtime in violation of Oregon’s wage-and-hour laws and as to that portion of Plaintiffs wrongful-discharge claim related to Defendant’s alleged failure to pay overtime.

I. Plaintiffs claim for failure to pay overtime in violation of Oregon’s wage-and-hour laws.

As noted, Plaintiff alleges Defendant failed to pay Plaintiff for all of the overtime hours that he worked.

A. The Law

Under Oregon Revised Statute § 653.055(1)(a), employees are entitled to the full amount of their unpaid overtime wages. Under Oregon Revised Statute § 653.055(l)(b), employees are also entitled to statutory penalties as set out in Oregon Revised Statute § 652.150. In order for penalty wages to be awarded under Oregon Revised Statute § 652.150, a plaintiff must establish the employer “willfully” failed to pay the wages due. “[A] determination of willfulness for purposes of ORS 652.150[, however,] is not based on a determination of ‘good faith’ or ‘bad faith.’ Rather, the question is whether a person knows what he is doing, intends to do what he is doing, and is a free agent.” Vento v. Versatile Logic Sys. Corp., 167 Or.App. 272, 277, 3 P.3d 176 (2000)(quotation omitted). See also Capps v. U.S. Bank Nat. Ass’n, No. CV 09-752-PK, 2009 WL 5149135, at *4 (D.Or. Dec. 28, 2009) (same).

B. Analysis

Defendant agrees employees generally are entitled to payment for all of the overtime they work. Nevertheless, according to Defendant, an employer is entitled to summary judgment on an employee’s overtime claim when a plaintiff fails to present any evidence that the employer knew the plaintiff worked the overtime hours. Defendant relies on Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413 (9th Cir.1981), to support its position. In Forrester the plaintiff “deliberately omitted the inclusion of those [overtime] hours from his time sheet even though he admittedly knew he would have been paid for those hours.” Id. at 414. Accordingly, the court held employers are not liable for violations of the FLSA when “the acts of an employee prevent an employer from acquiring knowledge ... of alleged uncompensated overtime hours.” Id. at 414-15.

Defendant points to the fact that Plaintiff admits he was aware of Defendant’s policy that requires employees to report all hours worked, including overtime. Plaintiff testified at deposition that he was aware it was a violation of Defendant’s policy for an employee to work overtime without recording or reporting it. Plaintiff further testified he understood and, in fact, enforced Defendant’s overtime reporting policies with his own subordinates. Plaintiff, nevertheless, conceded at deposition that he did not record or report the overtime he claims Defendant failed to pay and that Cole never directly told him not to report any overtime hours that he had worked. Plaintiff testified Cole told him to report his time whenever he worked.

Plaintiff, however, notes he also testified at deposition that he asked Cole what to do when a customer paged Plaintiff after 5:00 p.m., and, according to Plaintiff, Cole responded: “Well, we do have to keep the customer happy, and it is going to require you to answer your pages” but stressed “[o]vertime is not allowed.” Decl. of Amy Joseph Pedersen in Support of Def.’s Mot. for Summary J., Ex. A at 16. Plaintiff testified there was not any “resolution to the ... answering pages after hours.”

Plaintiff also testified Cole engaged in intimidating behavior in the workplace, including grabbing employees’ chairs, kicking employees’ chairs, and clicking his pen impatiently or pacing behind employees’ chairs. Kistler also testified Cole would try to be intimidating in the workplace. Plaintiff testified this behavior made Plaintiff reluctant to report all of his overtime.

The Court concludes Plaintiff has established a genuine dispute of material fact exists as to whether Defendant knew or should have known that Plaintiff was working overtime without reporting it and, therefore, without being paid for all of it. Accordingly, the Court denies Defendant’s Motion for Partial Summary Judgment as to Plaintiffs claim for failure to pay overtime in violation of Oregon’s wage-and-hour laws.

II. Plaintiffs wrongful-discharge claim based on Defendant’s alleged failure to pay overtime.

Plaintiff also contends he was wrongfully discharged for complaining about unpaid overtime. Defendant, however, contends Plaintiff testified he never complained to Cole or Human Resources about Defendant’s alleged failure to pay Plaintiff for all of the overtime that he worked. As the Court has noted, Plaintiff has established a genuine dispute of material fact exists as to whether Cole understood Plaintiff was working overtime and complaining about the overtime work for which he allegedly was not being paid.

Accordingly, the Court denies Defendant’s Motion for Partial Summary Judgment as to Plaintiffs wrongful-discharge claim based on Defendant’s alleged failure to pay Plaintiff for overtime work.

CONCLUSION

For these reasons, the Court DENIES Plaintiff Mark McCauley’s Motion (#25) for [Partial] Summary Judgment and DENIES Defendant ASML U.S. Inc.’s Motion (# 30) for Partial Summary Judgment.

IT IS SO ORDERED. 
      
      . The parties do not identify Wood's position with Defendant.
     
      
      . Although Plaintiff has not titled his Motion as “partial,” his Motion does not include all of Plaintiff's claims against Defendant.
     
      
      . The parties agree Plaintiffs OFLA claims are subject to the same analysis as his FMLA claims pursuant to Oregon Revised Statute § 659A.186(2). The Court’s analysis of Plaintiff’s FMLA claims, therefore, applies equally to Plaintiff’s OFLA claims.
     
      
      . Although Forrester was decided under the Fair Labor Standards Act (FLSA), the parties here agree the analysis of overtime claims under Oregon's wage-and-hour laws is the same as the analysis under the FLSA.
     