Opinion
Civil No. 99-1418-HA
September 11, 2000
OPINION AND ORDER
I. Introduction.
Pending before the court is defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). Plaintiff, a laid-off employee of defendant, asserts that defendant refused to rehire her, in spite of her right to rehire under a collective bargaining agreement, because she was perceived as having a disability. (Complaint at ¶ 3.1; Plaintiff's Response at 1.) She brings claims under (1) the Americans with Disabilities Act; (2) Oregon's parallel state statute, ORS 659.436; (3) an Oregon state-law claim for wrongful termination; and (4) an Oregon state-law claim for intentional infliction of emotional distress. (Complaint at ¶ 3.1.) Defendant argues that plaintiff's complaint should be dismissed for failure to effect timely service, and also challenges her state-law claims on a number of legal bases. In deciding the motion, the court takes all the allegations in the complaint as true. Loyd v. Paine Webber, Inc., 208 F.3d 755, 757 n. 1 (9th Cir. 2000).
II. Discussion.
A. Delayed Service of Process
Defendant argues that plaintiff's complaint should be dismissed because she failed to serve defendant within 120 days as required by Rule 4(m). That rule provides as follows:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Fed.R.Civ.P 4(m). When a plaintiff fails to effect timely service and good cause has not been shown, a court has the discretion to dismiss the complaint, even if the statute of limitations has passed. Troxell v. Fedders of North America Incorporated, 160 F.3d 381, 382-83 (7th Cir. 1998).
As good cause, plaintiff asserts that after she filed her complaint, she forwarded a draft of additional claims arising out of the same incident to the Oregon Bureau of Labor and Industry ("BOLI") and the Equal Employment Opportunity Commission ("EEOC"). An EEOC investigator attempted to mediate the charge, but defendant refused to participate. Plaintiff did not attempt to serve defendant until after its refusal to mediate, as she believed litigation in this forum might prove unnecessary. (Affidavit of Fisher at ¶¶ 2-7.) In response, defendant cites case authority decided under Rule 4(j), the predecessor of 4(m), holding that failure to obtain service during settlement negotiations does not amount to good cause and the complaint should be dismissed. See, e.g., Farnsworth v. Sealand Service, Inc., 1989 WL 20544 at *2 (E.D.La.), aff'd, 896 F.2d 552 (5th Cir. 1990). Those cases were decided under a much more rigid version of Rule 4, however. The amended version "authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown." Advisory Committee Notes for the 1993 Amendments to Rule 4 (cited in Henderson v. United States, 116 S.Ct. 1638, 1641 n. 5 (1996)). Thus, the court has discretion whether to dismiss the complaint regardless whether good cause has been shown. Moreover, in this case plaintiff asserts she was pursuing administrative remedies required by law in order to perfect all of her discrimination claims. Although the more prudent course would clearly have been for her to have obtained service within 120 days, under these circumstances the court finds that dismissal of her complaint for the delay in service would be too harsh of a penalty. Accordingly, the motion to dismiss the complaint on this basis shall be denied.
B. Wrongful Discharge
Next, defendant argues that plaintiff's Oregon law wrongful discharge claim is preempted by Oregon's statute granting a cause of action for discrimination in employment based on disability, ORS 659.436. Under Oregon law, the availability of a common law remedy is conditioned upon the absence of an adequate statutory remedy. Underhill v. Williamina Lumber Co., No. CV-98-630-AS, 1999 WL 421596 at *4 (D.Or. May 20, 1999) (citing Delaney v. Taco Time Int'l Airlines, Inc., 297 Or. 10, 16 (1984)). An adequate statutory remedy will preempt an otherwise sufficient claim for common law wrongful discharge. Id.; see, e.g., Farrimond v. Louisiana-Pacific Corp., 103 Or. App. 563, 566-77 (1990) (worker's compensation laws preempt a wrongful termination action). Two judges of this court have already held that Oregon's disability statutes preempt a claim for wrongful discharge because the remedies provided by the legislature are adequate. In Robinson v. U.S. Bancorp, No. CV-99-2723-ST, 2000 WL 435468 (D.Or. April 20, 2000), Magistrate Judge Stewart held that the availability of an action under ORS 659.436 preempts a wrongful discharge claim, and in Underhill, Magistrate Judge Ashmanskas held that ORS 659.425 (a statute providing a cause of action for discrimination on the basis of disability by employment agencies) preempts a wrongful discharge claim. As set forth in those opinions, Oregon's anti-discrimination statutes provide adequate remedies, and therefore, plaintiff's wrongful discharge claim is preempted. Accordingly, this claim must be dismissed.
Plaintiff attempts to avoid dismissal by arguing that the federal Americans with Discrimination Act does not preempt her wrongful discharge claim. Plaintiff misses the point. Her wrongful discharge claim is based on Oregon state law. As explained above, Oregon's own anti-discrimination statutes preempt her state-law claim. Thus, it is irrelevant whether federal law also preempts her common law claim, for Oregon provides her with none.
C. Intentional Infliction of Emotional Distress.
Plaintiff also alleges a claim for intentional infliction of emotional distress.
To state a claim for intentional infliction of severe emotional distress, a plaintiff must plead that (1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's acts were the cause of the plaintiff's severe emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.
McGanty v. Staudenraus, 321 Or. 532, 542 (1994) (quoting Sheets v. Knight, 308 Or. 220, 236 (1989)). In her complaint, plaintiff merely alleges that defendant "intentionally inflicted emotional distress[.]" (Complaint at ¶ 3.1.) She provides no allegations elaborating how her firing "constituted an extraordinary transgression of the bounds of socially tolerable conduct." McGanty, 321 Or. at 542. The Oregon Supreme Court has held that "a discharge from employment, without more, d[oes] not amount to an extraordinary transgression of the bounds of socially tolerable behavior." Sheets, 308 Or. at 236; Patton v. J.C. Penney, Inc., 301 Or. 117 (1986), abrogated on other grounds by McGanty v. Staudenraus, 321 Or. 532 (1995)). Instead, "the purpose and the means used to achieve" the termination (or in this case, decision not to rehire) are "key." Patton, 301 Or. at 123. Patton made clear that the court's focus should be on the means used to effect the employment decision. In her response to the motion to dismiss, plaintiff offers no indication how the means used in failing to rehire her exceed the bounds of socially tolerable conduct; instead, she asserts that her bare-bones allegation is sufficient for notice pleading in federal court. (Plaintiff's Response at 4.) Plaintiff is mistaken. Although the federal rules do provide for notice pleading, Rule 8 still requires the plaintiff to plead "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8. Conclusory allegations are insufficient to defeat a motion to dismiss. Pareto v. FDIC, 139 F.3d 696, 698 (9th Cir. 1998). Plaintiff's complaint alleges only that she was not rehired. Thus, she has failed to allege a claim entitling her to relief. McGanty, 321 Or. at 542; Patton, 301 Or. at 123; see also Robinson, 2000 WL at 435468 at *8 (recounting the extreme hesitance with which Oregon courts will impose liability for intentional infliction of emotional distress in an employment situation). Accordingly, this claim must be dismissed.
D. ORS 659.436.
ORS 659.095 requires that a civil suit based upon related discrimination charges commence within 90 days after the BOLI mailing date denying an administrative complaint. Plaintiff acknowledges that she failed to file her state-law discrimination claim under ORS 659.436 within 90 days of the issuance of BOLI's right to sue letter, but argues that her failure "is of no consequence" because she "will be filing a motion to amend her Complaint that will prompt the reappearance of the ORS 659 allegations that cites those facts that occurred in the early 1999 as well as those facts that occurred in August 1999 and which were the basis for plaintiff's second EEOC filing." (Plaintiff's Response at 5.) The court's records indicate she has not yet amended her complaint, and even if she had, doing so would not revive her time-barred claim. See So So Liang Lo v. Pan Am. World Airways, Inc., 787 F.2d 827, 828 (2nd Cir. 1986) (allowing a second administrative complaint to revive time-barred discrimination allegations would render the 90-day time limitation meaningless). Her ORS 659.436 claim must be dismissed as untimely.
THEREFORE, IT IS HEREBY that defendant's motion to dismiss, (doc. 7), is granted in part and denied in part as follows: Plaintiff's ORS 659.436 claim, her wrongful discharge claim, and her intentional-infliction-of-emotional-distress claim are dismissed. The portion of defendant's motion to dismiss based on plaintiff's failure to effect timely service is denied.