Opinion
1:23-cv-00761-CL
02-25-2024
BAILEY JOHNSON, an individual, Plaintiff, v. ALLERGY AND ASTHMA CENTER OF SOUTHERN OREGON, PC., a professional corporation, and DOES 1 THROUGH 50, inclusive, . Defendants.
FINDINGS AND RECOMMENDATION
Mark D. Clarke, United States Magistrate Judge
Plaintiff Bailey Johnson (“Plaintiff”) brings this action against her former employer, Defendant Allergy and Asthma Center of Southern Oregon (“AAC”), and unknown responsible parties, Defendants Does 1 through 50 (“Does”), for claims of religious discrimination arising out of Plaintiff's termination. Before the Court is AAC's Motion to Dismiss. ECF No. 7. Oral argument was held on January 31, 2024. For the reasons below, the Court recommends that the Motion be GRANTED in part and DENIED in part.
FACTUAL BACKGROUND
Defendant AAC hired Plaintiff Bailey Johnson in 2018 to work as a medical assistant in AAC's Klamath Falls office. ECF No. 1 at ¶ 2.
On August 13, 2021, Oregon's then-Governor, Kate Brown, signed an executive order requiring COVID-19 vaccinations for healthcare workers. Exec. Order No. 21-29. The Oregon Health Authority's regulation required all healthcare workers in Oregon to be fully vaccinated by October 18, 202.1. OAR 333-019-1010 (2021). As a healthcare facility, AAC was legally required to comply with the vaccination mandate. Religious exceptions, however, were permitted: Requesting parties were required to submit a corroborating document, signed by the individual, stating that the request is based on “a sincerely held religious belief,” and “describing the way in which the vaccination requirement conflicts with the religious observance, practice, or belief of the individual.” OAR 333-019-1010(4)., Plaintiff submitted a request for a religious exception on October 13, 2021. ECF No. 1, Ex. B at 19. She included a letter from a pastor at her church supporting her choice:
https://records.sos.state.or.us/ORSOSWebDrawer/Recordhtml/8581092
We stand by Bailey regarding her religious conviction against forced vaccines. We do not wish to be labeled as anti-vaccine or . anti-science, however we are compelled to stand by our congregants who refuse to comply with mandatory vaccinations and support religious freedom and medical choice.
We strongly support Bailey's deeply held Biblical conviction, and any of our congregants, to resist mandates for getting the Covid-19 vaccination. We also value and respect how God speaks to His children individually. After seeking the Lord for guidance and discernment, Bailey firmly believes the Lord has led her to deny the Covid-19 vaccine mandate as it violates her religious freedom.Id. at 20. Plaintiff also included a memorandum explaining in her own words that Jesus Christ “has convicted [her] heart Biblically and through the Holy Spirit, to deny the COVID-19 vaccine mandate,” and that receiving it would put her in violation of her religion, as she understands it. Id. at 21.
AAC reviewed Plaintiff's request and denied it on October 26, 2021. Id. at Ex. C. Denial was based on a lack of non-contact positions available in the Klamath Falls office and an inability to accommodate Plaintiff's request: “AAC is not set up to have other strict protective measures, such as N-95 masks, full glove and gown precautions, physical plastic or glass barriers to prevent an unvaccinated worker from potentially infecting a patient or a co-worker.” Id. AAC terminated Plaintiff's employment for non-compliance with workplace rules, effective October 18, 2021. Id.
PROCEDURAL BACKGROUND
On April 3, 2023, the Oregon Bureau of Labor and Industries (“BOLI”) issued Plaintiff a right-to-sue letter. Id. at Ex. D. The letter notified Plaintiff that “[a]ny right to bring a civil action against [AAC] under ORS 659.885 will be lost if the civil action is not commenced within 90 days,” extending Plaintiff's window to commence until July 2, 2023. Id.
On May 24, 2023, Plaintiff filed her complaint against Defendants, asserting one federal and two state law claims. ECF No. 1. The First Claim for Relief alleges AAC discriminated against Plaintiff's religion in violation of Title VII of the Civil Rights Act. The Second Claim for Relief alleges AAC similarly violated Oregon's prohibition on religious discrimination under ORS 659A.030(1)(a). The Third Claim for Relief alleges Does 1 through 50 aided and abetted religious discrimination in violation of ORS 659A.030(1)(g).
On May 25, 2023, a summons naming AAC was issued electronically. ECF No. 6.
On August 28, 2023, summons was served on AAC.
Plaintiff previously moved to extend time for service, explaining that due to a mild oversight, Plaintiff failed to complete service on August 22, 2023. See ECF No. 14. The Court granted the motion, applying the extension retroactively and finding that Plaintiff's corrected service performed on August 28, 2023, was properly completed in accordance with Fed.R.Civ.P. 4(m). See Order, ECF No. 15. Plaintiff therefore served AAC with summons and complaint on August 28, 2023. The question of timeliness as to Plaintiff's federal claim that was raised by Defendant in its Motion to Dismiss, ECF No. 7, is accordingly moot. Only the question of timeliness as to Plaintiff's state law claims remains to be addressed by this Findings and Recommendation.
LEGAL STANDARD
Defendant AAC moves to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
A Rule 12(b)(6) motion to dismiss will be granted where the plaintiff fails to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). To state a claim for relief, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” so as to provide the defendant with fair notice of what the claim is and the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2).
Dismissal under Rule 12(b)(6) is proper if there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” E.g., Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating a motion to dismiss, the court must accept all allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. Odom v. Microsoft Corp., 486 F.3d 541, 545 (9th Cir.!2007) (internal citations omitted). However, the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555.
DISCUSSION
First, Defendants AAC's Motion to Dismiss should be granted with respect to Plaintiff's state law claims against AAC and Does. Second, the Motion should be denied as to Plaintiff's remaining federal claim.
I. State Claims
AAC moves to dismiss Plaintiff's Second and Third Claims for Relief, arguing that they were not commenced within the applicable statute of limitations under Oregon law. Plaintiff argues the federal rules govern her pendent state law claims, and therefore the action was timely commenced upon filing.
Plaintiff's state law claims were the subject of her BOLI Complaint. A BOLI right to sue letter allows a plaintiff 90 days within which to commence a civil action. ORS 659A.875(2). Under Federal Rule of Civil Procedure 3, an action commences upon filing of the complaint, after which a plaintiff has 90 days to complete service. Fed.R.Civ.P. 3; Fed.R.Civ.P. 4(m). Under Oregon Revised Statute 12.020, an action commences once both the filing of the complaint and the service of summons are completed, unless the summons is served within 60 days of filing the complaint, in which case the commencement date relates back to the time of filing. ORS 12.020.
Here, Plaintiff's 90-day BOLI notice required her to commence the action by July 2, 2023. Plaintiff filed the complaint on May 24, 2023, but she did not serve the summons until August 28, 2023. Thus, under Rule 3, this action commenced in May within the 90-day window. However, under ORS 12.020, this action commenced in August beyond the 90-day window.
In diversity jurisdiction actions, state law claims are governed by state substantive law and federal procedural law. Erie R.R. Co. v. Tompkins, 304 U.S, 64 (1938). Statutes of limitations are substantive for purposes of the Erie doctrine, and thus, in diversity actions, state law governs the commencement of state-law based actions. Torre v. Brickey, 278 F.3d 917, 919 (9th Cir. 2002) (quoting Walker v. Armco Steel Corp., 446 U.S. 740, 752 (1980)). The Supreme Court has' not directly addressed an analogous rule for supplemental state law claims brought under federal question jurisdiction. However, the same principles apply. “Statutes of limitations, which dictate the life of state causes of action, are too intimately connected with the substance of the state-created right to be disregarded by the federal courts." Harvey's Wagon Wheel, Inc. v. Van Blitter, 959 F.2d 153, 157 (9th Cir. 1992) (original citations omitted). ORS 12.020 “is a statement of a substantive decision by [Oregon] that actual service on, and accordingly actual notice to, the defendants is an integral part of the several policies served by the statute of limitations.” Torre, 278 F.3d at 919 (quoting Habermehl v. Potter, 153 F.3d 1137, 1139 (10th Cir. 1998)). The Court' thus joins other courts within this District in finding that the timeliness of pendent state law claims brought pursuant to a court's federal question jurisdiction is governed by state law. See Montgomery v. City of Portland Fire & Rescue, Civil No. 08-1006-MO, 2009 U.S. Dist. LEXIS 39726, *11 (D. Or. May 1, 2009); see also Stewart v. RockTenn CP, LLC, Case No.: 3:13-cv-021447-AC, 2015 U.S. Dist. LEXIS 54196 at * 16 (D. Or. April 24, 2015). A contrary holding could encourage forum shopping and would produce “the unusual result of allowing a state-law claim to proceed despite the fact that [it] would be dismissed as untimely if it were brought originally in state court."Stewart, 2015 U.S. Dist. LEXIS 54196, at *16.
Under ORS 12.020, Plaintiff's action commenced when she completed service on August 28, 2023, 96 days after she filed her complaint and 147 days after she received her BOLI notice. Plaintiff's commencement date therefore does not relate back to the time of filing and is now time-barred under Oregon law.
Because this deficiency is not one that can be cured by amendment, the Court recommends Plaintiffs' Second and Third Claims for Relief be dismissed with prejudice. Defendants Does should be dismissed from the matter accordingly.
II. Federal Claim
Defendant AAC further moves to dismiss all of Plaintiff's claims, arguing generally that Plaintiff failed to sufficiently state a cause of action. Having found the Second and Third Claims time-barred, the Court focuses its analysis on Plaintiff's remaining federal claim: religious discrimination in violation of Title VII of the 1964 Civil Rights Act.
To establish a prima facie case of religious discrimination under Title VII, "a plaintiff must allege facts that plausibly demonstrate: (1) he holds a bona fide religious belief, the practice of which conflicted with an employment duty; (2) he informed the employer of that belief and conflict; and (3) the employer threatened the employee with or subjected him to discriminatory treatment, including discharge, because of an inability to fulfill the job requirements." E.g., Burcham v. City of Los Angeles, 562 F.Supp.3d 694, 708 (C.D. Cal. 2022).
Plaintiff has adequately pled the second and third elements of her claim. Plaintiff alleged that she notified AAC of the conflict between her beliefs and a mandatory vaccine, see ECF No. 1 at ¶ 18, and that AAC received documents regarding her religious exception request, see id. at Ex. B. Plaintiff also alleged that AAC terminated her employment “[d]ue to Plaintiff's religious objection to receiving the COVID-19 vaccine.” Id. ¶ 44. She alleged AAC threatened to fire her, Id. at ¶ 49, and demonstrated animus towards her religious beliefs, Id. at ¶ 50.
Defendant's Motion primarily hinges on the sufficiency of the first element. Defendant argues that AAC was not legally required to provide an exception because Plaintiff was a healthcare worker who provided no cognizable request for an exception. The Court, mindful of the low burden presented by a motion to dismiss, disagrees that Plaintiff did not adequately plead this element of her claim. She alleged that she “is a practicing Christian,” Id. at ¶ 16, who was “personally convicted by God to abstain,” Id. at ¶ 40. She alleged she was “convicted biblically and through the Holy Spirit to deny the COVID-19 vaccine mandate by her Lord, Jesus Christ” and thus, believed that receiving it would be in direct violation to her religion. Id. at ¶ 21. She also provided a letter and memorandum evincing the same. Id. at Ex. B. Plaintiff will still face the burden of proving her sincerely held religious belief. However, at this phase, the Court is satisfied that Plaintiff has met federal pleading standards with respect to her claim for religious discrimination pursuant to Title VII.
The Court recommends Defendant's Motion to Dismiss be denied narrowly, allowing Plaintiff's First Claim for Relief to proceed. .
RECOMMENDATION
The Court recommends Defendant's Motion to Dismiss be granted and denied in part.
The Court finds Plaintiffs state law claims are time-barred under Oregon law, and therefore recommends dismissing Plaintiffs Second and Third Claims for Relief, as well as Defendants Does 1 through 50. The Court finds Plaintiffs federal claim adequately pled and therefore recommends denying dismissal on that claim, allowing Plaintiffs First Claim for Relief to proceed.
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days after the date this recommendation is entered. If objections are filed, any response to the objections is due fourteen (14) days after the date the objections are filed. See Fed.R.Civ.P. 72,6. Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).