Opinion
3:19-cv-02076-IM
04-15-2020
LOWELL LELAND, Plaintiff, v. SUPERVALU WHOLESALE OPERATIONS, INC., Defendant.
Craig R. Berne, Harris Berne Christensen, LLP, Attorney for Plaintiff. Paul C. Buchanan, Buchanan Angeli Altschul & Sullivan LLP, Attorney for Defendant.
Craig R. Berne, Harris Berne Christensen, LLP, Attorney for Plaintiff.
Paul C. Buchanan, Buchanan Angeli Altschul & Sullivan LLP, Attorney for Defendant.
OPINION AND ORDER
Karin J. Immergut United States District Judge
This matter is before this Court on Defendant's Motion to Dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) and Plaintiff's Motion for Certification to the Oregon Supreme Court. Plaintiff Lowell Leland is a former employee of Defendant Supervalu Wholesale Operations, Inc. and its predecessor in interest, Unified Grocers. ECF 1-2 at ¶¶ 1-3. After several years of employment, Plaintiff was fired on October 18, 2018. Id. at ¶ 3. His Complaint includes four statutory claims, alleging religious discrimination based on his Mormon faith, age discrimination, retaliation for taking workers' compensation, and retaliation for exercising rights under the Oregon Family Leave Act. Id. at ¶¶ 4-13, 16-21, 26-31. He also brings a common-law claim for wrongful discharge. Id. at ¶¶ 22-25. Defendant moved to dismiss the statutory claims as time-barred and the common-law claim as preempted. ECF 4.
On February 21, 2020, this Court held a hearing on Defendant's motion. ECF 8. Following the hearing, the Court requested that the parties consider whether the question of interpreting O.R.S. 659A.875, which sets the statute of limitations for Plaintiff's statutory claims, should be certified to the Oregon Supreme Court pursuant to Local Rule 83-15. ECF 9. Afterward, Plaintiff moved to certify this question, which Defendant opposes. ECF 10; ECF 11.
With the benefit of the parties' supplemental briefing on the question of certification, this Court concludes that Plaintiff's statutory claims are untimely, that his common-law claim is preempted, and that certification to the Oregon Supreme Court is not warranted under the circumstances of this case. Accordingly, the Court grants Defendant's Motion to Dismiss the Complaint and denies Plaintiff's Motion for Certification to the Oregon Supreme Court.
STANDARDS
A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. See Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The court must draw all reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon Office Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
In ruling on a 12(b)(6) motion, a court may generally “consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). However, the court “may consider a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is unquestioned.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). Under these circumstances, the court may consider such a document without treating the motion as one for summary judgment. See id.; cf. Fed. R. Civ. P. 12(d) (otherwise requiring the court to apply Rule 56 standards to consider evidence from beyond the pleadings).
BACKGROUND
After working at a position in Defendant's warehouse for several years, Plaintiff was fired on October 18, 2018. ECF 1-2 at ¶ 3. He alleges that he was “frequently bullied, harassed, and insulted” because he is 61, older than most of his co-workers, and because he is Mormon. Id. at ¶¶ 4-6. As a result of this harassment, he suffered work-related injuries, filed for workers' compensation, and took leave under the Oregon Family Leave Act. Id. at ¶¶ 9-10. He alleges that he later faced retaliation for taking leave and for complaining about his coworkers' conduct. Id. at ¶¶ 12-13. He seeks economic and non-economic damages, including for emotional distress, in the amount of $995,000. Id. at pp. 8-9.
Prior to filing the Complaint in this case, Plaintiff filed a complaint with the Oregon Bureau of Labor and Industries (“BOLI”) based on the same alleged conduct. Id. at ¶ 14. In his Complaint in this case, he avers that he received a right-to-sue letter from BOLI within 90 days of filing the Complaint. Id. However, Defendant attached a copy of the letter to its motion. Decl. of Paul Buchanan in Supp. of Def.'s Mot. to Dismiss (“Buchanan Decl. 1”), Ex. A, ECF 4-1 at 4-8. The attachment demonstrates that BOLI sent its right-to-sue letter to Plaintiff on June 26, 2019, a fact that Plaintiff concedes. Id., Ex. A at 1, 4, ECF 4-1 at 4, 7; ECF 5 at 2-3. The BOLI right-to-sue letter stated that the Civil Rights Division “did not find sufficient evidence to continue [its] investigation.” Buchanan Decl. 1, Ex. A at 1, ECF 4-1 at 4. The letter informed Plaintiff that he had 90 days from the date of the letter to file a complaint in Oregon circuit court, and that he would lose this right if he did not file his complaint within 90 days. Id. The 90-day period elapsed on September 24, 2019. This Court grants Defendant's request to take judicial notice of the right-to-sue letter pursuant to Fed.R.Evid. 201(c)(2). ECF 4 at 3 n.1.
Plaintiff's response to Defendant's motion concedes that Plaintiff and his attorney miscalculated when the 90-day period would end and that he filed this Complaint “92 days after the date of the BOLI notice letter.” ECF 5 at 3.
On September 26, 2019, two days after the 90-day period ended but less than one year after he was fired, Plaintiff filed this lawsuit in Clackamas County Circuit Court. ECF 1-2 at 1. Defendant removed this case to federal court on December 20, 2019, ECF 1, and filed its Motion to Dismiss on December 27, 2019, ECF 4. This Court held a hearing on February 21, 2020. ECF 8. Following the hearing, this Court requested that the parties consider whether this case raised a question of Oregon law appropriate for certification to the Oregon Supreme Court. ECF 9. Plaintiff filed his Motion for Certification to the Oregon Supreme Court on February 27, 2020. ECF 10. Defendant filed its Opposition to Plaintiff's Motion for Certification to the Oregon Supreme Court on March 9, 2020. ECF 11.
DISCUSSION
Under Oregon law, unlawful employment practices include discrimination on the basis of age and religion, as well as retaliation for opposing such conduct. See O.R.S. 659A.030(1)(a), (f) (2017). To remedy unlawful employment practices, including those defined in O.R.S. 659A.030, an individual may file an administrative complaint with BOLI under O.R.S. 659A.820(2) or a lawsuit under O.R.S. 659A.885(1). The initial complaint must be filed-either administratively or in court-within one year after the unlawful practice occurred. See O.R.S. 659A.820(2), 659A.875(1). Although a BOLI complaint is not a prerequisite to filing a lawsuit, one who files an administrative complaint may later proceed in court. O.R.S. 659A.870(2) (2017). BOLI must send notice to a complainant if it dismisses his or her complaint within one year of filing, or if the complaint is still unresolved after it has been pending for one year. See O.R.S. 659A.880(1)-(2) (2017). This “90-day notice” informs the complainant of his or her right to sue. See O.R.S. 659A.880(3) (2017).
In 2019, the Oregon Legislature adopted amendments to chapter 659A. See Act of June 11, 2019, Or. Laws 2019, ch. 343 (SB 726); Act of June 20, 2019, Or. Laws 2019, ch. 463 (SB 479). Among those changes, the period of limitations codified at O.R.S. 659A.875(1) is now five years for certain unlawful employment practices. See O.R.S. 659A.875(1)(b) (2019). Neither party in this case argues that these amendments apply to this proceeding. See ECF 5 at 3; ECF 7 at 5-6; see also Or. Laws 2019, ch. 343, § 10(1) (stating that amendments apply to conduct prohibited by O.R.S. 659A.030 occurring on or after effective date of Act); Or. Laws 2019, ch. 463, § 10(1) (same). Therefore, the Court and the parties cite the 2017 edition of the Oregon Revised Statutes, which contains the law in effect at the relevant time.
The right of action now codified at O.R.S. 659A.885 dates to 1977, when the Oregon Legislature “enacted a statutory private equitable proceeding to supplement the existing administrative complaint procedure available through the Bureau of Labor since 1949.” Holien v. Sears, Roebuck & Co., 298 Or. 76, 91 (1984), superseded in part by statute, Or. Laws 2007, ch. 903, as recognized in Espinoza v. Evergreen Helicopters, Inc., 359 Or. 63, 88 n.14 (2016).
At issue in this lawsuit are the limitation periods set forth in O.R.S. 659A.875, which provides:
(1) Except as provided in subsection (2) of this section, a civil action under O.R.S. 659A.885 alleging an unlawful employment practice must be commenced within one year after the occurrence of the unlawful employment practice unless a complaint has been timely filed under O.R.S. 659A.820.
(2) A person who has filed a complaint under O.R.S. 659A.820 must commence a civil action under O.R.S. 659A.885 within 90 days after a 90-day notice is mailed to the complainant under O.R.S. 659A.880. This subsection does not apply to a complainant alleging an unlawful practice under O.R.S. 659A.145 or 659A.421 or discrimination under federal housing law.O.R.S. 659A.875 (2017). Defendant argues that Plaintiff's statutory claims are barred by the 90-day period set forth in subsection (2). ECF 4 at 4-6. Defendant also argues the existence of a statutory remedy under O.R.S. 659A.885 precludes bringing a common-law wrongful discharge claim. Id. at 11-14. This Court considers these two issues in turn.
A. Statutory Claims
Defendant contends that Plaintiff's claims under O.R.S. 659A.885-the first, second, fourth, and fifth claims in the Complaint-are untimely because they were filed more than 90 days after BOLI sent a right-to-sue notice to Plaintiff. ECF 4 at 4-6. In response, Plaintiff argues that the 90-day limitations period does not bar lawsuits otherwise filed within one year of an unlawful employment practice. ECF 5 at 3-5. Plaintiff argues that “the question is whether the time to file a complaint under O.R.S. 659A.030 is the shorter of the two time periods in O.R.S. 659A.875 (1) and (2) or the longer of those two time periods.” ECF 12 at 3.
The parties agree that if no BOLI complaint is filed, O.R.S. 659A.875(1) allows one year to file a lawsuit challenging an unlawful employment practice. Furthermore, if an individual first files a timely administrative complaint with BOLI, mailing of the right-to-sue notice can extend this one-year period by an extra 90 days. Macy v. Zusman Metals Co., Inc., 314 Or. 320, 326-27 (1992) (citing Williams v. Waterway Terminals Co., 298 Or. 506, 509 (1985)). The issue here is whether the timing of the right-to-sue notice can also shorten this one-year period. Oregon appellate courts have not addressed this question. However, in Daniel v. Oregon Health & Sciences University, the Oregon District Court held that the statute of limitations in O.R.S. 659A.875 does not bar a lawsuit filed within one year after the occurrence of unlawful conduct but more than 90 days after BOLI sent the plaintiff a right-to-sue notice. 262 F.Supp.3d 1079, 1086-87 (D. Or. 2017). Daniel appears to be the only opinion squarely addressing the question at hand.
In Daniel, the court distinguished two Oregon District Court decisions dismissing lawsuits filed more than 90 days after BOLI mailed right-to-sue notices but within one year after the allegedly unlawful conduct, because those courts had not considered the argument that the 90-day period in O.R.S. 659A.875(2) functions only to extend the one-year period in subsection (1). See 262 F.Supp.3d at 1086 (citing Rinallo v. Capsa Sols., LLC, 222 F.Supp.3d 927, 928, 931 (D. Or. 2016); Montgomery v. City of Portland Fire & Rescue, No. 08-cv-1006-MO, 2009 WL 1329850, at *2, *5 (D. Or. May 8, 2009)). Daniel also cited with approval dicta from two decisions that had suggested that O.R.S. 659A.875(2) simply extends the one-year period in subsection (1). See 262 F.Supp.3d at 1086 (citing Bieker v. City of Portland, No. 3:16-cv-00215-BR, 2016 WL 3769753, at *6 (D. Or. July 14, 2016); Campbell v. Knife River Corp.-Nw., 783 F.Supp.2d 1137, 1148 (D. Or. 2011)). However, Bieker and Campbell are distinguishable. In Bieker, the plaintiff had filed his lawsuit within 90 days after BOLI sent a right-to-sue notice. 2016 WL 3769753, at *6-7. Under those circumstances, the 90-day period does function to extend the statute of limitations. See Williams, 298 Or. at 509 (1985). In Campbell, the plaintiff had not filed a BOLI complaint, so the 90-day period was inapplicable. See 783 F.Supp.2d at 1148.
In construing an Oregon statute, the federal court's role is to “interpret the law as would the [Oregon] Supreme Court.” Powell's Books, Inc. v. Kroger, 622 F.3d 1202, 1209 (9th Cir. 2010) (alteration in original) (quoting Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 925 (9th Cir. 2004)). According to the Oregon Supreme Court, the first step in statutory construction is “an examination of text and context.” State v. Gaines, 346 Or. 160, 171 (2009) (en banc). The second step is to consider “pertinent legislative history that a party may proffer, ” even if there is no ambiguity in the statutory text. Id. at 172. Finally, “[i]f the legislature's intent remains unclear after examining text, context, and legislative history, the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.” Id.
The text of O.R.S. 659A.875(1) requires that a lawsuit be filed “within one year after the occurrence of the unlawful employment practice unless a complaint has timely been filed under O.R.S. 659A.820.” O.R.S. 659A.875(1) (2017). In other words, the one-year period for filing a lawsuit does not apply to someone who first files a complaint with BOLI. See id.; O.R.S. 659A.820(2) (2017). Indeed, subsection (1) begins with the phrase “[e]xcept as provided in subsection (2) of this section, ” further emphasizing that subsection (2) functions as an exception to the one-year period. O.R.S. 659A.875(1) (2017). According to the second subsection, a “person who has filed a complaint [with BOLI] under O.R.S. 659A.820 must commence a civil action under O.R.S. 659A.880 within 90 days after a 90-day notice is mailed to the complainant under O.R.S. 659A.880.” O.R.S. 659A.875(2) (2017). These two subsections instruct, without ambiguity, that when someone files a complaint with BOLI, the limitations in subsection (2) apply, requiring a lawsuit to be filed within 90 days after BOLI mails its right-to-sue notice.This 90-day period has been strictly enforced. See Morgan v. Interfor Pac., Inc., No. 08-cv-3105-CL, 2009 WL 723341, at *3-4 (D. Or. Mar. 13, 2009) (dismissing lawsuit filed one day after 90-day period elapsed).
O.R.S. 659A.875(1) does not control the timeliness of a BOLI complaint, which is governed by O.R.S. 659A.820(2). See O.R.S. 659A.820(2) (2017).
The statutory context reinforces this conclusion. Subsection (2) of O.R.S. 659A.875 cross-references O.R.S. 659A.880, which requires BOLI to send 90-day notice letters if the agency dismisses a complaint within one year or has not resolved the complaint one year after it was filed. See O.R.S. 659A.880(1)-(2) (2017). This section further clarifies that the 90-day period after a right-to-sue notice is mailed provides the sole deadline for filing lawsuits by individuals who originally filed complaints with BOLI:
A 90-day notice under this section must be in writing and must notify the complainant that a civil action against the respondent under O.R.S. 659A.885 may be filed within 90 days after the date of mailing of the 90-day notice, and that any right to bring a civil action against the respondent under O.R.S. 659A.885 will be lost if the action is not commenced within 90 days after the date of the mailing of the 90-day notice.O.R.S. 659A.880(3) (2017) (emphasis added).
Plaintiff's interpretation of the 90-day period under O.R.S. 659A.875(2)-that it functions only to extend the one-year deadline for filing a lawsuit-conflicts with the content of BOLI's 90-day notice letters, as statutorily required under O.R.S. 659A.880(3). See Id. At oral argument, Plaintiff maintained that there is no way to harmonize O.R.S. 659A.880(3) with O.R.S. 659A.875(1) and (2). Plaintiff argues that to read O.R.S. 659A.875(2) and O.R.S. 659A.880(3) as allowing only 90 days to file a lawsuit, regardless of whether one year has elapsed since the conduct at issue, is to ignore O.R.S. 659A.875(1). This Court disagrees. As noted above, O.R.S. 659A.875(1) specifies twice that the one-year period is subject to the exception under subsection (2) if an individual has filed a BOLI complaint. See O.R.S. 659A.875(1) (2017). Reading O.R.S. 659A.875(2) and O.R.S. 659A.880(3) as allowing 90 days to file a lawsuit after BOLI mails a right-to-sue notice thus creates no conflict with O.R.S. 659A.875(1).
The legislative history provided by Defendant further supports this conclusion. See Decl. of Paul Buchanan in Opp'n to Pl.'s Mot. for Certification to Or. Sup. Ct. (“Buchanan Decl. 2”), Exs. C, D, ECF 11-1; see also Gaines, 346 Or. at 172 (instructing that “a party is free to proffer legislative history to the court, and the court will consult it after examining text and context, even if the court does not perceive an ambiguity in the statute's text”). Beginning in 1999, the Oregon Law Commission (“OLC”) spearheaded an effort to reorganize the civil rights laws administered by BOLI, creating chapter 659A of the Oregon Revised Statutes. See Buchanan Decl. 2, Ex. C at 3-4, ECF 11-1 at 45-46; see also McLaughlin v. Wilson, 365 Or. 535, 544 (2019) (discussing these amendments). The OLC formed a Civil Rights Workgroup to draft the amendments. Buchanan Decl. 2, Ex. C at 4, ECF 11-1 at 46. A June 12, 2000 memorandum from this workgroup acknowledges that filing a complaint with BOLI can shorten the otherwise-applicable one-year period for filing a lawsuit. See Buchanan Decl. 2, Ex. D at 5 n.7, ECF 11-1 at 53 (“It is difficult to understand why a complainant would ask for a dismissal [from BOLI], since the only effect of such a request would be to cause the issuance of a 90-day notice and a shortening of the time during which the complainant could bring a civil action.”). This legislative history underscores that this Court's interpretation of O.R.S. 659A.875 is consistent with legislative intent.
In light of the statute's text, context, and legislative history, this Court concludes that a party that files a BOLI complaint must file a lawsuit within 90 days of BOLI mailing a right-to-sue notice. This Court recognizes that the court reached a different conclusion in Daniel. See 262 F.Supp.3d at 1086-87. However, that decision did not address the statutory context provided in O.R.S. 659A.880(3) or the legislative history that Defendant has presented in this case. See Id. Because the statute and statutory context in this case are clear, and are supported by legislative history, this Court exercises its discretion and declines to certify interpretation of O.R.S. 659A.875 to the Oregon Supreme Court. See W. Helicopter Servs., Inc. v. Rogerson Aircraft Corp., 311 Or. 361, 368-69 (1991).
Because this Court concludes that the Legislature's intent is clear, it is not necessary to resort to “general maxims of statutory construction” in interpreting the statute. Gaines, 346 Or. at 172.
Because Plaintiff concedes that he filed his Complaint more than 90 days after BOLI mailed a right-to-sue letter, his claims under O.R.S. 659A.885 are time-barred. Accordingly, this Court grants Defendant's Motion to Dismiss as to the first, second, fourth, and fifth claims and dismisses these claims with prejudice.
B. Common-Law Claim
Defendant argues that the existence of a statutory remedy, even if untimely here, precludes Plaintiff's third claim, a common-law wrongful discharge claim. See ECF 4 at 12-13. Plaintiff responds that if his statutory claims are untimely, then his common-law claim would not be preempted because he would lack an adequate alternative remedy. ECF 5 at 5-6. Plaintiff further states that he would be willing to dismiss his common-law claim if the Court allows his statutory claims to proceed. Id. at 6. The crux of this dispute is whether a common-law claim is precluded simply because an otherwise adequate statutory claim is untimely.
Oregon law recognizes the tort of wrongful discharge. See Moustachetti v. State, 319 Or. 319, 325 (1994). However, Oregon courts have characterized the action as an “interstitial tort, designed to fill a gap where a discharge in violation of public policy would otherwise not be adequately remedied.” Kemp v. Masterband Cabinets, Inc., 257 Or.App. 530, 537 (2013) (quoting Dunwoody v. Handskill Corp., 185 Or.App. 605, 613 (2003)). Courts typically analyze whether the law protects the public interest in providing a remedy for general types of conduct, such as retaliation, rather than focusing on the procedural history of a particular case. See, e.g., Battan v. Allwest Underground, Inc., No. 08-cv-00707-BR, 2008 WL 4191467, at *3 (D. Or. Sept. 5, 2008); Rinallo v. Capsa Sols., LLC, 222 F.Supp.3d 927, 928, 931-33 (D. Or. 2016).
Plaintiff has not provided any authority to support his argument that this Court should consider the timeliness of his statutory claims in analyzing whether his common-law claim is precluded. Furthermore, his willingness to dismiss his common-law claim demonstrates that the statutory remedies adequately protect the underlying public interest. See Zasada v. Gap, Inc., No. 05-cv-1849-BR, 2006 WL 2382514, at *5-6 (D. Or. Aug. 10, 2006). Accordingly, this Court concludes that the statutory remedy under O.R.S. 659A.885 preempts Plaintiff's common-law wrongful discharge claim. Therefore, this Court grants Defendant's Motion to Dismiss as to Plaintiff's third claim and dismisses this claim with prejudice.
CONCLUSION
Plaintiff's Motion for Certification to the Oregon Supreme Court, ECF 10, is DENIED. Defendant's Motion to Dismiss, ECF 4, is GRANTED. Plaintiff's Complaint is DISMISSED with prejudice.
IT IS SO ORDERED.