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Flug v. University Of Oregon11/1/2000
obligation to offer other employment to a disabled employee who, because of her disability, can no longer perform the duties of her former employment. We need not decide whether that is the proper interpretation of the statutory and regulatory language, however, because even if we were to decide that "reasonable accommodation" as required by ORS 659.425 imposes the same affirmative duty imposed by ORS 659.420, we conclude that, in this case, defendant did all that is required by that duty.
In Blumhagen v. Clackamas County, 91 Or App 510, 756 P2d 650, rev den 306 Or 527 (1988), we discussed the extent of an employer's affirmative duty under ORS 659.420. In that case, the injured plaintiff had argued that her employer had violated ORS 659.420 because there was a substantial difference in salary, duties and responsibilities between her former position and the position offered her after her injury . Relying on our opinion in Carney v. Guard Publishing Co., 48 Or App 147, 152, 616 P2d 548, on recons 48 Or App 927, 630 P2d 867, rev den 290 Or 171 (1980), we concluded that ORS 659.420
"does not demand that an employer create positions or substitute an injured employe for a non-injured one. Neither is an employer obligated to offer a selection of equally suitable jobs or hold its offer open for an unreasonable period of time." Blumhagen, 91 Or App at 514.
Because there were no available positions comparable to the plaintiff's former job , we concluded that the employer complied with its statutory duty when it offered the plaintiff the lower-paying position. Id. at 515.
In this case, defendant avers, and plaintiff does not dispute, that at the time plaintiff demanded a transfer there were no comparable positions open. Defendant invited plaintiff to contact its Employment Manager to identify forthcoming job openings that might be suitable. Plaintiff did not respond to that invitation. Even if we are to assume that ORS 659.425 contains an obligation equivalent to that found in ORS 659.420, we conclude that, under Blumhagen, defendant here discharged that obligation when it informed plaintiff that, although there were no comparable (managerial) jobs available, she should contact the personnel office to determine whether there might be a position open in the future for which she was qualified or whether there was a current opening that might be of lesser responsibility (and lesser salary) that she might want. Pursuant to OAR 839-06-245(3), the disabled employee must cooperate with the employer's efforts to accommodate the employee. Because plaintiff did not respond to defendant's suggestion that she contact the personnel office, there is no way of knowing if she would have obtained another, non-managerial, position. Consequently, defendant had no further obligation toward plaintiff--she was unable to perform the duties of the position for which she was hired, there were no comparable positions to which she could be transferred, and she did not cooperate with defendant's attempt to identify any other position for which she might be qualified. Accordingly, defendant fulfilled any obligation that may have been imposed upon it by ORS 659.425 and summary judgment on plaintiff's unlawful employment practices claim was appropriate.
Finally, plaintiff asserts that the trial court erred when it granted defendant summary judgment on plaintiff's retaliation claim. In her second amended complaint, plaintiff alleged that, beginning on or about May 15, 1995, defendant retaliated against her for her opposition to what she perceived as unlawful employment practices.
Defendant moved for summary judgment on the discrimination and retaliation claims without distinguishing b
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