Opinion
3:22-cv-02000-SB
05-17-2023
DANIEL W. ETTLING, Plaintiff, v. TEENY FOODS CORPORATION, an Oregon corporation, Defendant.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN, United States Magistrate Judge.
Plaintiff Daniel Ettling (“Ettling”) filed this action against his former employer, Defendant Teeny Foods Corporation (“Teeny Foods”), alleging claims for wrongful discharge and violations of Oregon Revised Statutes (“ORS”) §§ 659A.199(1) and 654.062(5). Teeny Foods moves to dismiss Ettling's wrongful discharge claim pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6).
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(1), but not all parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636. For the reasons explained below, the Court recommends that the district judge grant Teeny Foods's motion to dismiss.
In evaluating a defendant's motion to dismiss under Rule 12(b)(6), the Court must-and does-“limit [its] review to the [plaintiff's] complaint, accept the complaint's well-pleaded factual allegations as true, and construe all inferences in the plaintiff's favor[.]” Ariz. Students'Ass'n v. Ariz. Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016) (citing Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) and Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001)).
Teeny Foods, an Oregon corporation with its principal place of business in Multnomah County, Oregon, develops and manufactures “frozen bakery snacks and handheld entrees, sticks[,] and bites for branded food manufacturers.” (Compl. ¶¶ 3, 7, ECF No. 1.) Ettling is a Washington citizen who resides in Clark County, Washington. (Id. ¶ 3.) Beginning in September 2020, and at all relevant times, Ettling worked as a quality assurance manager and preventative controls qualified individual at the Teeny Foods manufacturing facility in Multnomah County. (Id. ¶¶ 4, 8.)
In August 2021, CenterGate Capital (“CenterGate”), an entity based out of Texas, purchased Teeny Foods. (Id. ¶ 9.) Ettling met CenterGate's “principal representatives” at the Teeny Foods facility in April 2022, and by early May 2022, Ettling was in direct communication with CenterGate's representatives regarding issues at the Teeny Foods facility that “raised significant concerns,” primarily under the U.S. Food and Drug Administration's Food Safety Modernization Act (“FSMA”). (Id.)
An employee can file an administrative complaint with the Occupational Safety and Health Administration (“OSHA”) “invok[ing] the whistleblower provision of the [FSMA] . . ., which generally protects employees in the food and drug industries from retaliation for opposing conduct they reasonably believe violates the Food, Drug, and Cosmetic Act[.]” Byron v. Inst. forEnv't Health, Inc., 428 F.Supp.3d 467, 470 (W.D. Wash. 2019) (citation omitted). The Food, Drug, and Cosmetic Act “regulates food and drug processing, production, and testing.” Id.
There were several issues that Ettling believed violated applicable provisions of the Code of Federal Regulations (“CFR”), which he reported to “management and ownership.” (Id. ¶ 10.)
These issues included that Teeny Foods “food products [were] being adulterated by undesirable microorganisms” and Teeny Foods failed to “address . . . peeling and chipping paint[] and other threats to the food product stream,” to “maintain food contact surfaces such as conveyor belts,” to “eliminate a Listeria-positive ice buildup,” and to “involve the . . . appropriate personnel in pre-reviewing, [and] hazard analysis of, proposed and enacted changes to the production process[.]” (Id.) Ettling also reported a “potential violation” to “management and ownership” based on Teeny Foods's “failure to conduct and document OSHA-required training of employees[.]” (Id. ¶ 11.)
In June 2022, Ettling halted production at the Teeny Foods facility after “learning that turned and moldy cheese had been authorized to continue to be used in production.” (Id. ¶ 12.) Ettling “insisted that production remain halted until the [production] line had been cleaned and new cheese had been brought in” and “demanded that approximately 12,000 pounds of the improperly thawed and hazardous cheese be destroyed,” but later learned that “some of the turned and molded cheese was nevertheless used in production after [he left work on the day in question].” (Id.)
In July 2022, after receiving related encouragement and coaching from a general manager, Ettling emailed that same manager and a vice president of operations “explicitly raising issues regarding food safety and quality critical concerns and rejecting [Teeny Foods's] decreasing risk tolerance standards and willingness to cut corners for profit.” (Id. ¶¶ 13-14.) Ettling also “expressed his concerns that the ongoing production issues posed a high biological and pathogenic risk to the public and to the company employees themselves, including risk from Listeria, salmonella, and other hazards.” (Id. ¶ 13.) Teeny Foods terminated Ettling ten days later. (Id. ¶ 15.)
Ettling alleges that Teeny Foods terminated his employment in retaliation for his reports and complaints about health and safety risks and legal violations and opposition to Teeny Foods's practices, which are “protected activities” under Oregon statutory law. (See id. ¶¶ 16, 19-31.) As a result, Ettling filed this diversity action against Teeny Foods on December 29, 2022, alleging claims for wrongful discharge and violations of ORS §§ 659A.199(1) and 654.062(5). (See id. at 5-7.)
LEGAL STANDARDS
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff's “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (simplified).
DISCUSSION
Teeny Foods moves to dismiss Ettling's wrongful discharge claim pursuant to Rule 12(b)(6). (Def.'s Mot. Dismiss (“Def.'s Mot.”) at 2, ECF No. 7.) The Court's disposition turns on a single question of Oregon law: whether Ettling is precluded from bringing a common law wrongful discharge claim because there are adequate statutory remedies available under his claims for violations of ORS §§ 659A.199(1) and 654.062(5). (See Pl.'s Resp. Def.'s Mot. Dismiss (“Pl.'s Resp.”) at 1-2, ECF No. 8, disputing only whether the statutory remedies are adequate).
As explained below, adequate statutory remedies are available to Ettling, and as a result, Ettling may not bring both his statutory claims and a common law claim for wrongful discharge. The Court therefore recommends that the district judge grant Teeny Foods's motion to dismiss Ettling's wrongful discharge claim.
I. APPLICABLE LAW
Before turning to the parties' arguments, the Court first discusses the statutes at issue and remedies available thereunder. ORS § 659A.199(1) provides, in relevant part, that it is unlawful for “an employer to discharge . . . or in any manner discriminate or retaliate against an employee . . . for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.” OR. REV. STAT. § 659A.199(1). With respect to available remedies, ORS § 659A.885 provides that in an action under ORS § 659A.199, a court may (1) “order injunctive relief and any other equitable relief that may be appropriate, including but not limited to reinstatement or the hiring of employees with or without back pay,” (2) “allow the prevailing party costs and reasonable attorney fees at trial and on appeal,” and (3) “award, in addition to the [foregoing forms of] relief . . ., compensatory damages or $200, whichever is greater, and punitive damages.” Id.§ 659A.885(1)-(3).
Ettling alleges that he reported and complained about what he believed were CFR violations, as well as one “potential” CFR violation, and because he did so, Teeny Foods discharged him in violation of ORS § 659A.199(1). (Compl. ¶¶ 10-13, 16, 23, 25.)
The Oregon Supreme Court's decision in Walker v. State ex rel. Oregon TravelInformation Council, 484 P.3d 1035 (Or. 2021), discusses the adequacy of the remedies available under ORS § 659A.199. In Walker, the plaintiff brought “both a statutory whistleblowing claim and a common law wrongful discharge claim,” but the Oregon Supreme Court observed that “a plaintiff could not do so today under the current statute.” Id. at 1045. The Oregon Supreme Court noted that “[u]nder the [applicable] 2015 version of ORS 659A.203, the statute provided only equitable remedies,” and “[g]iven th[is] gap in the available remedies, [the] plaintiff was able to assert both claims.” Id. at 1045 n.4. The Oregon Supreme Court, however, explained that “[i]n 2016, the [Oregon] legislature amended ORS 659A.203 to provide additional remedies, including compensatory damages.” Id. Specifically, the Oregon legislature amended the statute to “allow[] for any remedy under ORS 659A.199,” which “allow[s] for remedies provided by ORS chapter 659A,” including the compensatory damages a trial court may award under ORS § 659A.885(3)(a). Id. (citations omitted). The Oregon Supreme held that “[a] plaintiff today, therefore, would be afforded a complete remedy under the current statute and could no longer bring both a statutory whistleblowing claim under ORS 659A.203 and a common-law wrongful discharge claim.” Id.
ORS § 654.062 provides that “[e]very employee should notify the employer of any violation of law, regulation or standard pertaining to safety and health in the place of employment when the violation comes to the knowledge of the employee.” Id. § 654.062(1). ORS § 654.062 further provides that “[i]t is an unlawful employment practice for any person to bar or discharge from employment or otherwise discriminate against any employee or prospective employee because the employee or prospective employee has (a) [o]pposed any practice forbidden by [the OSEA]; [or] (b) [m]ade any complaint . . . related to [the OSEA].” Id. § 654.062(5)(a)-(b). Subsection (6) addresses a plaintiff's remedies for alleged violations of subsection (5):
ORS § 654.062 is part of the Oregon Safe Employment Act (“OSEA”), which is “codified in ORS 654.001 to 654.295, ORS 654.412 to 654.423, ORS 654.750 to 654.780, and ORS 654.991[.]” Ossanna v. Nike, Inc., 445 P.3d 281, 288 n.2 (Or. 2019).
Ettling alleges that in accordance with ORS § 654.062(1), he complained, rejected, and provided notice of a “violation of law pertaining to safety and health in the place of employment,” and because he did so, Teeny Foods discharged him in violation of ORS § 654.062(5)(a)-(b). (Compl. ¶¶ 10-13, 16, 27-31.)
(6)(a) Any employee . . . alleging to have been . . . discharged from employment or otherwise discriminated against . . . in violation of subsection (5) of this section may . . . file a complaint with the Commissioner of the Bureau of Labor and Industries[.] . . . Upon receipt of the complaint the commissioner shall process the complaint under the procedures, policies and remedies established by ORS chapter 659A and the policies established by ORS 654.001 to 654.295, 654.412 to 654.423 and 654.750 to 654.780 in the same way and to the same extent that the complaint would be processed if the complaint involved allegations of unlawful employment practices under ORS 659A.030(1)(f). ....
(c) The affected employee or prospective employee may bring a civil action in any circuit court of the State of Oregon against any person alleged to have violated subsection (5) of this section....
(d) The commissioner or the circuit court may order all appropriate relief including rehiring or reinstatement to the employee's former position with back pay.Id. § 654.062(6)(a)-(d).
The Oregon Court of Appeals' decisions in Deatherage v. Johnson, 215 P.3d 125 (Or. Ct. App. 2009) and Vergara v. Patel, 471 P.3d 141 (Or. Ct. App. 2020), are instructive with respect to the available remedies under ORS § 654.062, and the adequacy of those remedies in this context.
In Deatherage, the plaintiff alleged that she was terminated because she contacted the Oregon Occupational Safety and Health Division to “report health and safety violations at [the] employer's place of business,” and asserted a wrongful discharge claim against her former employer. 215 P.3d at 125. The trial court granted the employer's motion to dismiss the wrongful discharge claim on the ground that the plaintiff had an adequate statutory remedy, and in doing so, relied on Walsh v. Consolidated Freightways, 563 P.2d 1205 (Or. 1977), a decision in which the Oregon Supreme Court “explained that the plaintiff had an adequate remedy under an existing statute and, for that reason, it was ‘unnecessary to extend an additional tort remedy to cover [his wrongful discharge claim].'” Id. at 125-26 (quoting Walsh, 563 P.2d at 1208). The plaintiff appealed. Id. at 125.
On appeal, the Oregon Court of Appeals explained that “[t]he statute providing the adequate remedy [in Walsh] was a federal law, . . . [but] the [Oregon Supreme Court] noted that[] after the case was filed [and] before the opinion was written, the Oregon legislature had enacted a state analog, former ORS 654.062(5) (1973), renumbered as ORS 654.062(5), (6) (2005).” Id. at 126. The Oregon Court of Appeals further explained that under the statute at issue, ORS § 654.062, a plaintiff alleging a claim for violation of subsection (5) is “not limited to a remedy in an action brought on his or her behalf by [the Oregon Bureau of Labor and Industries (‘BOLI')] . . . [, as a plaintiff] ‘may bring a civil action in circuit court of the State of Oregon.'” Id. (referring to OR. REV. STAT. § 654.062(6)(a) and quoting OR. REV. STAT. § 654.062(6)(c)). After emphasizing that the BOLI “commissioner or the circuit court may order all appropriate relief including rehiring or reinstatement to the employee's former position with back pay,” the Oregon Court of Appeals explained that an injunction, reinstatement, and back pay-i.e., forms of relief that a federal district court deemed inadequate and thus not precluding a wrongful discharge claim-were “not necessarily the only relief that [was] available in a circuit court case under ORS 654.062(6)(c).” Id. (quoting OR. REV. STAT. § 654.062(6)(d)).
Consequently, the Oregon Court of Appeals “h[e]ld that[] unless the [Oregon] Supreme Court repudiates or modifies its holding in Walsh, a plaintiff alleging retaliatory termination must bring that claim, if at all, under either a federal or a state statute,” and therefore affirmed the trial court's dismissal of the plaintiff's wrongful discharge claim. Id. The Oregon Court of Appeals “also note[d] that no authority of which [it was] aware holds or suggests, nor d[id] [it] hold or suggest, what remedies are available in [a plaintiff's safety and health-related wrongful discharge] action under ORS 654.062(6)(d), which provides for ‘all appropriate relief including rehiring or reinstatement to the employee's former position with back pay.'” Id.; see alsoRohrerv. Oswego, LLC, 482 P.3d 811, 815 (Or. Ct. App. 2021) (reflecting that the Oregon Court of Appeals “understand[s] [its] statement in Deatherage-‘a plaintiff alleging retaliatory termination must bring that claim, if at all, under either a federal or a state statute'-to refer to retaliation claims such as those in Walsh and Deatherage, where existing statutory remedies are adequate”).
Vergara is a recent example of the Oregon Court of Appeals' application of Walsh and Deatherage. In Vergara, the plaintiff was terminated after complaining about health and safety issues at work, and alleged “employment claims under ORS 654.062(5) and ORS 659A.199 and a common-law wrongful discharge claim.” 471 P.3d at 143. The Oregon Court of Appeals held that “the existence of functionally adequate statutory remedies preclude[d] [the] plaintiff from pursuing that common-law remedy.” Id. In support of its holding, the Oregon Court of Appeals emphasized that in Walsh, the Oregon Supreme Court (1) determined that “existing [federal statutory] remedies [were] adequate to protect both the interests of society in maintaining safe working conditions and the interests of employees who are discharged for complaining about safety and health problems,” which is consistent with the understanding that “wrongful discharge was not intended to be a tort of general application; rather, it is ‘an interstitial tort, designed to fill a gap where a discharge in violation of public policy would otherwise not be adequately remedied,'” and (2) noted that “ORS 654.062(5) now provide[d] a similar remedy under state law.” Id. at 152 (quoting Walsh, 563 P.2d at 1208 and Dunwoody v. Handskill Corp., 60 P.3d 1135, 1138 (Or. Ct. App. 2003)).
The Oregon Court of Appeals also emphasized that Deatherage “adhered to Walsh's singular focus on the adequacy of statutory remedies,” it agreed with the defendant that Deatherage controlled, and “Walsh [was] directly on point, and [it was] bound by that decision.” Id. at 151-52 (citing Deatherage, 215 P.3d at 126). Thus, the Oregon Court of Appeals held that “adequate statutory remedies exist[ed] under ORS 654.062 to vindicate the wrongful conduct that [the] plaintiff allege[d] . . ., and that factor alone preclude[d] her wrongful discharge claim.” Id. at 152.
II. ANALYSIS
The Oregon cases discussed above and below demonstrate that an adequate statutory remedy is available to Ettling under his claims for violations of ORS §§ 659A.199 and 654.062, thus precluding his wrongful discharge claim.
Ettling disagrees. Ettling maintains that ORS § 659A.885 is the “applicable remedies statute” with respect to his statutory claims under ORS §§ 659A.199 and 654.062, and emphasizes that ORS § 659A.885(3)(a) “caps any award of compensatory damages at $200” and that “[i]t is this damages cap which renders [his] statutory remedies inadequate.” (Pl.'s Resp. at 2.) Citing Reid v. Evergreen Aviation Ground Logistics Enterprises Inc., No. 07-cv-01641-AC, 2009 WL 136019 (D. Or. Jan. 20, 2009), Ettling represents that “[i]t has been held that the statutory remedies available under ORS 654.062 and ORS 659A.885 are insufficient to foreclose a claim for wrongful discharge.” (Pl.'s Resp. at 3.) Ettling also notes that Deatherage “declined to decide what remedies are available under ORS 654.062(6)(d),” and neither Deatherage nor the four federal cases he cites “analyzed whether a $200 cap on compensatory damages was adequate.” (Id.)
Ettling's arguments are unpersuasive. Notably, and as Teeny Foods correctly points out (see Reply Supp. Def.'s Mot. Dismiss at 2-3, ECF No. 9), ORS § 659A.885 provides that in an action under ORS § 659A.199 and other statutory sections, the court may award, among other things, “compensatory damages or $200, whichever is greater[.]” OR. REV. STAT. § 659A.885(3)(a) (emphasis added). The statute does not impose a compensatory damages cap of $200. Accordingly, Walker instructs that Ettling may not bring a wrongful discharge claim because this statutory remedy is available and adequate. See Karthauser v. Columbia 9-1-1Commc'ns Dist., ___ F.Supp.3d ___, 2022 WL 17979739, at *22 (D. Or. Dec. 28, 2022) (granting summary judgment on a claim under ORS § 659A.330 and stating that “any other wrongful discharge claim would be precluded by the availability of adequate statutory remedies” (citing Walker, 484 P.3d at 1045 & n.4)); see also Ryan v. HSC Real Est., No. 08-cv-01465-KI, 2010 WL 3222443, at *3 (D. Or. Aug. 11, 2010) (noting that Deatherage “relied on Walsh . . . when it held that ‘all appropriate relief' provided in the state statute prohibiting retaliation for reporting safety or health violations, ORS 654.062(5) and (6), was ‘not necessarily the only relief that is available in a circuit court case under ORS 654.062(6)(c),'” and holding that “ORS 654.062 provides an adequate statutory remedy for discrimination based on complaints about safety and health violations”) (citation omitted).
Further, the Court notes that Reid predated Deatherage and relied exclusively on the district court's decision in Cantley v. DSMF, Inc., 422 F.Supp.2d 1214 (D. Or. 2006). SeeReid, 2009 WL 136019, at *21. That is notable because in affirming the dismissal of the plaintiff's wrongful discharge claim in Deatherage, the Oregon Court of Appeals rejected the plaintiff's reliance on Cantley and explained that Cantley “misconstrue[d] the relevant statutes.” 215 P.3d at 126.
For these reasons, adequate statutory remedies are available to Ettling, and therefore the Court recommends that the district judge grant Teeny Foods's motion to dismiss Ettling's wrongful discharge claim. SeeSchumacher v. J.R. Simplot Co., No. 6:21-cv-00489-MC, 2021 WL 3604836, at *2 (D. Or. Aug. 13, 2021) (“‘[C]ommon law wrongful discharge . . . may only be invoked when another claim does not provide a plaintiff with an adequate remedy.' . . . Because the common law wrongful discharge claim provides the same remedies as a statutory whistleblower retaliation claim [under ORS § 659A.199], ‘[those] two claims cannot be pursued simultaneously when based upon the same conduct.”” (quoting Walker, 484 P.3d at 1045 and Luke v. Target Corp., No. 3:18-cv-00381-SI, 2018 WL 2144347, at *2 (D. Or. May 9, 2018))).
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT Teeny Foods's motion to dismiss (ECF No. 7).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.