Opinion
3:22-cv-00921-JR
03-13-2023
ZACHARY GUSTAFSON, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, BONNEVILLE POWER ADMINISTRATION, JENNIFER GRANHOLM, as Secretary of Energy, CHAD HAMEL, an individual, and SALIENT CRGT, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Plaintiff Zachary Gustafson filed suit against Defendant Bonneville Power Administration (“BPA”), a federal non-profit agency that is part of the United States Department of Energy; Defendant Chad Hamel, an employee of BPA; and Salient CRGT (“Salient”), who supplies contract workers to BPA. Salient now moves to dismiss Plaintiff's Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, Salient's motion should be granted.
BACKGROUND
In 2018, Plaintiff was hired by BPA through Salient to work in the Fish and Wildlife Division under Hamel. Am. Compl. ¶¶ 5-6, 8 (doc. 27).
From July 3 through 5, 2019, Plaintiff took leave under the Family Medical Leave Act (“FMLA”) to attend to his sick father. Id. at ¶ 38. On August 5, 2019, Plaintiff filed a complaint with the BPA Equal Employment Opportunity hotline, alleging Hamel mistreated several women that he supervised. Id. at ¶¶ 9-10. Plaintiff sent a copy of the complaint to Saliant and BPA's Ethic's Investigator, Dave Thatcher, in the following days. Id. at ¶¶ 11-12. In between these actions Plaintiff took his second FMLA leave on August 7. Id. at ¶ 39.
On September 12, 2019, Hamel began to ask individuals about meetings with BPA Human Resources (“HR”) in what Plaintiff perceived as a search to determine who filed the complaint against him. Id. at ¶ 14. Around this time, Plaintiff alleges Hamel gave him the cold shoulder, socially isolated him, made snide remarks, sent disrespectful emails, gave more scrutiny to his work, “bad mouthed” him to coworkers and other managers, and reported inaccurate and misleading information about his work performance and attendance. Id. at ¶ 15.
Plaintiff took FMLA leave from September 13 through 17, October 7 through 14, and November 26 through 29, 2019. Id. at ¶¶ 40-42.
On January 3, 2020, Plaintiff reported to BPA's Ombudsperson and Thatcher that Hamel was subjecting him to bullying, harassment, and retaliatory behavior. Id. at ¶ 18. Plaintiff was concerned Hamel would retaliate against him by not renewing his BPA contract. Id.
On January 14, 2020, Plaintiff met with Salient to discuss Hamel's conduct, including Plaintiff's concern that Hamel would retaliate against him by not renewing his contract. Id. at ¶ 19. The following day, Plaintiff was notified by Salient that his contract was renewed by BPA until February 6, 2021. Id. at ¶ 22. On January 27, 2020, Plaintiff took another FMLA approved leave to care for his father. Id. at ¶ 43.
On January 29, 2020, Hamel questioned Plaintiff's ability to be the Environmental Compliance Lead on the Brook Trout Environmental Impact Statement Project. Id. at ¶ 23. Plaintiff sent emails to Thatcher on February 4 and 5, 2020, reiterating his concerns about bullying, harassment, and retaliation from Hamel and detailing two incidents of differential treatment. Id. at ¶¶ 24-25. On February 6, 2020, Plaintiff was removed by Hamel from his lead position, a decision that Hamel made with his supervisor and not at the request of sponsors and project managers. Id. at ¶ 26.
From February 26 through April 13, 2020, Plaintiff took six separate FMLA leaves to attend to his sick father, who eventually passed away. Id. at ¶¶ 44-49. During these leaves Plaintiff was contacted by coworkers with work related questions. Id. at ¶ 52.
Dory Welch, BPA's Deputy Vice President of Environment, Fish and Wildlife, conducted a workplace investigation from February 26 through March 10, 2020, concerning Hamel. Id. at ¶ 27. Welch's findings were inconclusive, and, on May 11, 2020, Hamel received a warning and outlined expectations regarding his personnel practices. Id. at ¶¶ 27-28.
On July 1, 2020, Hamel informed Plaintiff that several of his project completion forms were late and that he had two weeks to complete them; Plaintiff timely complied. Id. at ¶ 29. On August 17, 2020, Welch denied Plaintiff's request to transfer from Hamel's working group. Id. at ¶ 30.
On January 22, 2021, after Plaintiff inquired on the status of his contract renewal, Hamel instructed him to contact Salient. Id. at ¶ 32. On January 26, 2021, Plaintiff notified Salient “that Hamel had Gustafson's contract renewal request but was sitting on it and requested an update. [Salient] did not provide an update.” Id. On February 3, 2021, Hamel emailed the working group that Plaintiff's contract was not renewed. Id. at ¶ 33. After this, Plaintiff applied for open positions with BPA but was not interviewed or hired. Id. at ¶ 34.
On June 27, 2022, Plaintiff initiated this action alleging claims for (1) employment discrimination and retaliation under Title VII and Or. Rev. Stat. § 659A.030A; (2) First Amendment violation under 42 U.S.C. § 1983; and (3) FMLA interference. Plaintiff seeks lost wages and benefits, and injunctive relief.
Although plaintiff does not delineate which claims are asserted against which defendant, his § 1983 claim appears to pertain solely to BPA and Hamel.
STANDARD OF REVIEW
Where the plaintiff “fails to state a claim upon which relief can be granted,” the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Regardless, bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
DISCUSSION
Salient asserts plaintiff's claims fail because he does not plausibly allege that Salient interfered with his FMLA leave, discriminated or retaliated against him, or aided and abetted BPA in its alleged discrimination and retaliation. Def.'s Mot. Dismiss 1 (doc. 31). Accordingly, Salient requests “that Plaintiff's claims against [it] be dismissed with prejudice.” Id. at 22.
I. Preliminary Matter
Plaintiff's opposition is predominantly premised on a joint employer theory. See, e.g., Pl.'s Resp. to Mot. Dismiss 2-3 (doc. 37). As such, the Court must first resolve whether the Amended Complaint contains well-plead facts to support such a theory regarding his federal claims.
“[T]he ‘joint employer' theory is not recognized by Oregon state law within the context of employment discrimination claims.” Ford-Torres v. Cascade Valley Telecom, Inc., 2008 WL 551503, *5 (D. Or. Feb. 26, 2008), aff'd, 374 Fed.Appx. 698 (9th Cir. 2010).
The FMLA defines “employer” as “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” 29 U.S.C. § 2611(4)(A)(ii)(I). A joint employment relationship may exist “[w]here two or more businesses exercise some control over the work or working conditions of the employee.” 29 C.F.R. § 825.106(a). Accordingly, “the legal entity which employs the employee is the employer under FMLA,” unless the “joint employment test discussed in § 825.106, or the integrated employer test contained in paragraph (c)(2) of this section” is satisfied. 29 C.F.R. § 825.104(c).
Although functionally different, both tests involve the application of several factors that focus on, among other things, the degree of control over the workers, the work, and the finances. See Moreau v. Air France, 356 F.3d 942, 947 (9th Cir. 2004) (setting forth non-exhaustive regulatory and non-regulatory factors in regard to the “economic reality” of the employment relationship); 29 C.F.R. § 825.104(c) (articulating factors to determine an integrated employer). Ultimately, the presence of a joint or integrated employer relationship under the FMLA does not depend on any individual factor, but rather upon the circumstances as a whole. 29 C.F.R. §§ 825.104(c), 825.106(b).
Likewise, under Title VII, an entity can be held liable for discrimination if it is an “employer” of the plaintiff. 42 U.S.C. § 2000e-2(a). And “[i]t is now well-settled that an individual can have more than one employer for Title VII purposes.” U.S. Equal Emp't Opportunity v. Glob. Horizons, Inc., 915 F.3d 631, 637 (9th Cir. 2019) (collecting cases). Thus, two entities may share Title VII liability where they are “joint employers” - i.e., they “simultaneously share control over the terms and conditions of employment” and meet the common law agency test. Id.
In sum, the joint employer tests under both the FMLA and Title VII focus on the challenged entity's control over the individual's employment. Ford-Torres, 2008 WL 551503 at *5; see also Glob. Horizons, 915 F.3d at 639 (noting that “there may be little functional difference among the common-law agency test, the economic-reality test, and a third test that blends elements of the first two (the so-called ‘hybrid' test) . . . All three are fact-intensive tests that will usually produce the same outcome in a joint-employment analysis”).
Here, while plaintiff concludes Salient and BPA are joint employers, there are no facts, well-plead or otherwise, establishing the presence of any relevant factors. See Imageline, Inc. v. Cafe Press.com, Inc., 2011 WL 1322525, *4 (C.D. Cal. Apr. 6, 2011) (allegations that each defendant was the “agent, partner, servant, supervisor, employee, successor and/or joint venturer of each of the remaining defendants” were “nothing more than legal conclusions of the type prohibited by Iqbal and Twombly”). In fact, the Amended Complaint is completely silent as to this issue. The allegations simply show Salient provided candidates to BPA, whereas BPA supervises the day-to-day operations of successful hires, approves, or denies their requests for FMLA leave, and decides which contracts get renewed. Therefore, plaintiff fails to allege sufficient facts to establish the existence of a joint employer relationship.
II. FMLA Interference Claim
To establish an interference claim under FMLA, a plaintiff must show that: (1) he exercised his rights under the FMLA; (2) his employer subsequently engaged in activity that tends to chill the exercise of his rights; and (3) his employer's activity was motivated by the exercise of his rights. Rexwinkel v. Parsons, 162 Fed.Appx. 698, 700 (9th Cir. 2006). The key inquiry is whether the employer's conduct makes an employee “less likely to exercise their FMLA leave rights [because] they can expect to be fired or otherwise disciplined for doing so.” Olson v. U.S. Dep't of Energy, 980 F.3d 1334, 1338 (9th Cir. 2020) (citation and internal quotations omitted).
Even assuming Salient was involved in the day-to-day work activities of plaintiff, including approving FMLA leave, there are not sufficient facts to establish interference. Plaintiff's claim is premised on phone calls he received from coworkers while on leave. Am. Compl. ¶ 52 (doc. 27). Yet there is no indication that these phone calls were directed by Salient or motivated by a desire to deter his FMLA leave.Rather, plaintiff merely alleges “Hamel did not instruct BPA employees or contractors not to contact him” despite “knowing that Gustafson was on leave.” Id. at ¶ 51.
Plaintiff also references being criticized for his attendance and being behind on his work, but these actions emanated with Hamel, as opposed to Salient. Am. Compl. ¶¶ 53-54, 77 (doc. 27).
In any event, the temporal gap between plaintiff's last FMLA leave (April 2020) and the non-renewal of his 2021 contract (February 2021) is too great to demonstrate the third element. See Christenson v. Boeing Co., 2004 WL 2110707, *9 (D. Or. Sept. 22, 2004) (where the plaintiff “allege[d] that the reason he was discharged was because he opposed unlawful age discrimination and the denial of FMLA leave,” the court held that “this seven month time span alone is not short enough to establish a causal connection between the two incidents”); see also Tiffany v. Dzwonczyk, 696 Fed.Appx. 7, 9 (2d Cir. 2017) (affirming the dismissal of an FMLA retaliation claim where the plaintiff was terminated “more than a year after returning from FMLA leave,” noting “courts in this circuit have typically measured [temporal proximity] as a matter of months, not years).
Moreover, plaintiff does not provide any details concerning the context, frequency, duration, or source of the calls, such that any conclusion regarding interference would be speculative, especially given that plaintiff alleges nearly ten discrete FMLA leave periods. See Stoss v. J.P. Morgan Chase Bank, N.A., 2014 WL 585946, *5 (D. Or. Feb. 14, 2014) (“vague [allegations do] not rise to the level of plausibility required to survive a motion to dismiss”); see also Neumeyer v. Wawanesa Gen. Ins. Co., 2015 WL 1924981, *19 (S.D. Cal. Apr. 24, 2015) (“there is no right in the FMLA to be ‘left alone' or to be completely relieved from responding to an employer's discrete inquiries”) (collecting cases); Reilly v. Revlon, Inc., 620 F.Supp.2d 524, 537 (S.D. N.Y. 2009) (“[f]ielding occasional calls about one's job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee's FMLA rights”) (citing Kesler v. Barris, Sott, Denn & Driker, PLLC, 482 F.Supp.2d 886, 910-11 (E.D. Mich. 2007)). Salient's motion should be granted as to the plaintiff's FMLA interference claim.
Plaintiff attempts to distinguish Neumeyer on the ground that he was “being contacted multiple times by coworkers asking work questions and being asked to perform work tasks.” Pl.'s Resp. to Mot. Dismiss 7 (doc. 37). However, as addressed herein, the Amended Complaint does not allege any particularities regarding these contacts, such that it is unclear whether de minimus demands were made on plaintiff's leave time or something more significant occurred that may rise to the level of interference.
III. Claims Under Or. Rev. Stat. § 659A.030 and Title VII
Both Title VII and Or. Rev. Stat. § 659A.030(1)(b) make it unlawful “[f]or an employer, because of an individual's race, color, religion, sex, sexual orientation, national origin, marital status or age . . . to discriminate against the individual in compensation or in terms, conditions or privileges of employment.” Dawson v. Entek Int'l, 630 F.3d 928, 935 (9th Cir. 2011). As such, these statutes require the same prima facie elements to state a claim. See Ossanna v. Nike, Inc., 365 Or. 196, 204-05, 445 P.3d 281 (2019) (Oregon courts look “to Title VII precedent for guidance in analyzing claims brought under analogous provisions of ORS chapter 659A”).
A. Discrimination/Hostile Work Environment
Plaintiff disclaims the existence of any disparate impact or treatment claim in his opposition. See, e.g., Pl.'s Resp. to Mot. Dismiss 7 (doc. 37). The Court includes this analysis only in an abundance of caution and for the sake of completion.
To establish a prima facie case for unlawful discrimination under Title VII or Or. Rev. Stat. § 659A.030, a plaintiff must show that: (1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004). Similarly, to state a claim for hostile work environment in this context, the plaintiff must allege “severe or pervasive and unwelcome verbal or physical harassment because of a plaintiff's” sex or other protected category. Tsur v. Intel Corp., 2021 WL 4721057, *10 (D. Or. Oct. 8, 2021) (internal citations omitted).
Plaintiff's claim fails because he does not allege that he is a member of a protected class or that Salient treated other individuals outside his class more favorably. That is, plaintiff bases his allegations of discrimination on Hamel's treatment of women, as opposed to his own differential treatment due to his protected status. Furthermore, plaintiff does not address Salient's arguments concerning his hostile work environment claim. See generally Pl.'s Resp. to Mot. Dismiss (doc. 37); see also Justice v. Rockwell Collins, Inc., 117 F.Supp.3d 1119, 1134 (D. Or. 2015), aff'd, 720 Fed.Appx. 365 (9th Cir. 2017) (“if a party fails to counter an argument that the opposing party makes . . . the court may treat that argument as conceded”) (citation and internal quotations and brackets omitted). Salient's motion should be granted in this regard.
B. Retaliation
To state a prima facie claim for retaliation under Title VII or .OR Rev. Stat. § 659A.030, a plaintiff must allege (1) he engaged in a protected activity; (2) he suffered an adverse employment action; and (3) there is a causal link between the two. Dawson, 630 F.3d at 936. An employee engages in a protected activity when the employee reports an employment practice that violates Title VII or Or. Rev. Stat. § 659A.030, or a practice the employee reasonably believes violates these statutes. An adverse action is one which would deter a reasonable employee from reporting a charge of discrimination. Emeldi v. Univ. of Or., 698 F.3d 715, 726 (9th Cir. 2012).
This claim hinges on the causal relationship between plaintiff's report of sex discrimination against Hamel and the non-renewal of his 2021 contract. A plaintiff may satisfy the causation element through “timing alone when there is a close proximity between the two.” Thomas v. City of Beaverton, 379 F.3d 802, 812 (9th Cir. 2004). Events occurring within intervals of two or three months “are sufficiently proximate to support an inference of causation.” Id.
To the extent plaintiff cites to being removed from his lead position and denied a transfer, those actions also emanated exclusively with the BPA and not Salient. Am. Compl. ¶¶ 26, 30 (doc. 27). Further, plaintiff has not identified any legal or contractual duty requiring Salient to find him alternate employment upon the non-renewal of his 2021 BPA contract, and he has otherwise not alleged sufficient facts from which the Court could infer that Salient participated in the BPA's hiring decisions.
The Amended Complaint details three encounters between plaintiff and Salient. On August 6, 2019, plaintiff sent Salient a copy of his initial complaint against Hamel. Am. Compl. ¶ 11 (doc. 27). More than five months later, in January 2020, plaintiff reiterated his concerns surrounding Hamel's conduct and Salient thereafter renewed plaintiff's BPA contract until February 6, 2021. Id. at ¶¶ 19, 22. And, on January 26, 2021, plaintiff complained about Hamel “sitting on” his contract renewal and requested an update, but there is no indication that Salient responded or otherwise took any action. Id. ¶ 32.
As a result, plaintiff's allegations suggest that Hamel was responsible for the decision not to renew his 2021 BPA contract. Regardless, the year-plus long gap between plaintiff's last complaint of sex discrimination to Salient and the ultimate non-renewal of his contract is too attenuated to establish causation based on proximity, even assuming Salient played some role in the alleged adverse employment action. See Davico v. Glaxo Smith Kline Pharms., 2007 WL 2984014, *6 (D. Or. Oct. 9, 2007) (“the Ninth Circuit [has found] that intervals of four and five months were too long a period to raise an inference of discrimination”); Biggs v. City of St. Paul, 2019 WL 4575839, *14 (D. Or. Mar. 7), adopted by 2019 WL 4544268 (D. Or. Sept. 18, 2019) (“[c]ourts have declined to adopt a bright line rule designating when temporal proximity by itself is sufficient to establish an inference of retaliation, but have found gaps of 13 months between the protected activity and adverse action insufficient”); see also Housel v. Rochester Inst. of Tech., 6 F.Supp.3d 294, 311 n.13 (W.D. N.Y. 2014) (internal complaint not actionable where “the requisite causal connection is broken by an intervening positive event” - i.e., the renewal of her teaching contract). Salient's motion should be granted as to plaintiff's retaliation claim.
Indeed, plaintiff's opposition acknowledges that he does not have facts in his possession reflecting that Salient played an active role in this decision. See Pl.'s Resp. to Mot. Dismiss 5 n.1 (doc. 37) (“without discovery, plaintiff is unable to ascertain the true involvement or influence of Salient in the non-renewal decision”); see also id. at 6 (arguing “the person primarily charged with the decision to renew or not renew plaintiff's contract was . . . the exact person that had spoken disparagingly about plaintiff's attendance and work due to his FMLA leave and who plaintiff had reported for gender-based discrimination” and that temporal proximity should be measured from “when Hamel regained control over the decision to renew or not renew plaintiff's contract and the non-renewal of plaintiff's contract”).
As a result, plaintiff's aiding and abetting allegations against Salient also fail. See Dinicola v. Serv. Emp. Int'l Union, 2011 WL 3477074, *7 (D. Or. Aug. 5, 2011) (the plaintiff must establish a violation of the underlying Chapter 659A laws to bring an aiding and abetting claim); see also Pitts v. G4S Secure Sol., 2020 WL 6333959, *5 (D. Or. May 26, 2020) (the plaintiff must allege specific acts that the defendant undertook that arose to aiding and abetting).
Despite the Amended Complaint's deficiencies, the Court declines to dismiss plaintiff's claims against Salient with prejudice. Although Salient is correct that plaintiff has already had “the opportunity to amend his Complaint to plead additional facts that might tend to show that Salient interfered with his FMLA leave or that he was discriminated against, retaliated against, or that Salient aided or abetted BPA's discrimination,” plaintiff alludes to additional facts and expresses a willingness to amend. Def.'s Mot. Dismiss 22 (doc. 31); but see Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“[i]n determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss”); LR 7-1(b) (“[m]otions may not be combined with any response, reply, or other pleading”). Therefore, the Court cannot conclude, at least at this stage in the proceedings, that the deficiencies are incurable as a matter of law.
RECOMMENDATION
For the forgoing reasons Salient's Motion to Dismiss (doc. 31) should be granted. Plaintiff's request for oral argument is denied as unnecessary. Any motion to amend the complaint must conform with this Findings and Recommendation and be filed within 30 days of the District Judge's order.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgement or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of the party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of the fact in an order or judgement entered pursuant to this recommendation.