Opinion
3:22-cv-00921-JR
10-18-2023
ZACHARY GUSTAFSON, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, BONNEVILLE POWER ADMINISTRATION, JENNIFER GRANHOLM, as Secretary of Energy, and CHAD HAMEL, an individual, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Plaintiff Zachary Gustafson filed suit against Defendants Bonneville Power Administration (“BPA”), a federal non-profit agency that is part of the United States Department of Energy; Jennifer Granholm, the Secretary of Energy; and Chad Hamel, an employee of BPA. Defendants move to dismiss Plaintiff's Second Amended Complaint (“SAC”) pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, Defendants' motion should be granted in part and denied in part.
BACKGROUND
In 2018, Plaintiff was hired by BPA through Salient CRGT (“Salient”), a company that supplies contract workers, to work in the Fish and Wildlife Division under Hamel. SAC ¶ 7 (doc. 52). Plaintiff and Hamel had previously and successfully worked together for three years. Id.
From July 3 through 5, 2019, Plaintiff took leave under the Family Medical Leave Act (“FMLA”) to attend to his sick father. Id. at ¶ 37. 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 ¶¶ 8-9. Plaintiff then sent a copy of the complaint to BPA's Ethic's Investigator, Dave Thatcher. Id. at ¶ 11. On August 7, 2019, Plaintiff took his second FMLA leave. Id. at ¶ 38.
On September 12, 2019, Hamel began to question individuals about any meetings held with BPA Human Resources in what Plaintiff perceived as a search to determine who filed the complaint against him. Id. at ¶ 13. 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 ¶ 14. Plaintiff took FMLA leave from September 13-17, October 7-14, and November 26-29, 2019. Id. at ¶¶ 39-41.
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 ¶ 17. Plaintiff was concerned Hamel would retaliate against him by not renewing his BPA contract. Id. at ¶¶ 17-18.
On January 14, 2020, Plaintiff reported to Thatcher that Hamel knew he was the one who had submitted the ethics complaint. That same day, Hamel reported to “BPA's supplemental labor office” that Plaintiff was “making ‘false claims'” about him. Id. at ¶¶ 19-20. On January 15, 2020, Salient notified Plaintiff that BPA was renewing his contract until February 6, 2021. Id. at ¶ 21.
On January 27, 2020, Plaintiff took another FMLA approved leave to care for his father. Id. at ¶ 42.
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 ¶ 22. 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 ¶¶ 23-24. On February 6, 2020, Hamel removed Plaintiff from his lead position, a decision that Hamel made in conjunction with his supervisor, and not relying on any other individuals. Id. at ¶ 25.
From February 26-April 13, 2020, Plaintiff took several separate FMLA leaves-February 26, March 3, March 4-11, March 12, April 6-13 -to attend to his sick father, who eventually passed away. Id. at ¶¶ 43-48. Also, on March 12, 2020, “BPA told Gustafson to quarantine for 14 days due to his exposure to an individual who had tested positive for COVID-19.” Id. at ¶ 46. During these leaves Plaintiff was contacted by coworkers “with work related questions and asking him to perform work.” Id. at ¶ 51.
Dory Welch, BPA's Deputy Vice President of Environment, Fish and Wildlife, conducted a workplace investigation from February 26-March 10, 2020, concerning Hamel. Id. at ¶ 26. Welch's findings were inconclusive, and, on May 11, 2020, she issued a verbal warning to Hamel and outlined expectations regarding his personnel practices. Id. at ¶¶ 26-27.
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 ¶ 28. On August 17, 2020, Welch denied Plaintiff's request to transfer out of Hamel's working group. Id. at ¶ 29.
On January 20, 2021, Hamel chastised Plaintiff for offering his assistance in a group email because he did not consult with Hamel beforehand to do so. 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 ¶ 31. On February 3, 2021, Hamel emailed the working group to inform them that Plaintiff's contract was not renewed. Id. at ¶ 32. After this, Plaintiff applied for open positions with BPA but was not interviewed or hired. Id. at ¶ 33.
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. He subsequently amended his complaint but did not substantively change the nature of his claims.
On November 2, 2022, Salient moved to dismiss Plaintiff's claims against it pursuant to Fed.R.Civ.P. 12(b)(6). On May 25, 2023, the Court granted Salient's motion. See generally Gustafson v. U.S. Dep't Energy, 2023 WL 3688077 (D. Or. Mar. 13), adopted by 2023 WL 3687389 (D. Or. May 25, 2023).
On July 6, 2023, Plaintiff filed his SAC alleging claims for (1) unlawful retaliation under Title VII; and (2) FMLA interference.
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). And “[f]actual allegations must be enough to raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555.
DISCUSSION
Defendants seek prejudicial dismissal solely regarding Plaintiff's FMLA interference claim, which states in its entirety:
As alleged herein, Gustafson was an employee eligible for FMLA leave and Defendant BPA was a covered employees under 29 U.S. Code § 2611.
As alleged herein, Gustafson took leave to provide care, psychological comfort reassurance and transportation to medical appointments his father who had a terminal brain cancer, that qualifies as serious health condition pursuant to the FMLA. Defendant BPA was aware of the purpose of his leave.
As alleged herein, Defendant BPA interfered with Gustafson's protected leave by subjecting him to work-related calls and asking and requiring him to work during his protected leave, thereby violating the 29 USC § 2615(a).
As alleged herein, Defendant BPA, through its agents, interfered with Gustafson's FMLA rights by evaluating his performance and his attendance negatively, badmouthing him to other managers and employees in violation of 29 USC § 2615(a).
As alleged herein, Defendant BPA, through its agents, interfered with Gustafson's FMLA rights by terminating him in violation of 29 USC § 2615(a).SAC ¶¶ 62-69 (doc. 52).
To establish an interference claim under the 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'tof Energy, 980 F.3d 1334, 1338 (9th Cir. 2020) (citation and internal quotations omitted); see also Bachelder v. Am. W. Airlines, 259 F.3d 1112, 1124 (9th Cir. 2001) (employer's conduct tends to chill the exercise of an employee's rights when it uses an employee's FMLA leave as a “negative factor” in taking an adverse employment action against the employee).
Defendants assert that dismissal is warranted because: Plaintiff failed to cure deficiencies previously identified by the Court, the allegations surrounding work-related phone calls while on leave and performance criticisms lack adequate supporting facts, and the temporal gap between Plaintiff's last FMLA leave, and the non-renewal of his contract was “too great” to support an inference of causation. Defs' Mot. Dismiss 5, 7-8 (doc. 55).
Plaintiff acknowledges that temporal proximity alone may not be sufficient but, in this case, “[c]ausation is supported by more than mere temporal proximity.” Pl.'s Resp. to Mot. Dismiss 3 (doc. 57). That is, “Plaintiff is not relying only on the timing in this case, but also on the other actions taken by BPA and Hamel, including being chastised for his attendance following a protected leave . . . as well as being removed from his lead position.” Id. at 4.
I. Work-Related Phone Calls
As the Court previously explained, 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.” Gustafson, 2023 WL 3688077 at *4; see also Stoss v. J.P. Morgan Chase Bank, N.A., No. 13-1068, 2014 WL 585946, at *5 (D. Or. Feb. 14, 2014) (“vague [allegations do] not rise to the level of plausibility required to survive a motion to dismiss”); Neumeyer v. Wawanesa Gen. Ins. Co., No. 14-181, 2015 WL 1924981, at *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)).
Indeed, the Court explicitly found Plaintiff's “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'” unpersuasive because “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.” Gustafson, 2023 WL 3688077 at *4 n.4. The SAC does not contain any additional facts regarding these phone calls beyond those previously considered by the Court.Defendants' motion is therefore granted as to the SAC's allegations surrounding work-related calls.
As addressed herein, the Court does rely on its prior determinations to the extent applicable to the present motion. However, the law of the case doctrine does not overarchingly govern given that the Court's prior rulings were limited to the allegations surrounding Salient, as opposed to the BPA. See, e.g., Gustafson, 2023 WL 3688077 at *5 n.6.
II. Negative Statements About Plaintiff
Plaintiff concludes that Hamel “evaluat[ed] his performance and his attendance negatively, [and] badmouth[ed] him to other managers and employees,” but does not provide any details or context for these purported events. SAC ¶ 66 (doc. 52). For instance, Plaintiff fails to allege any facts as to Hamel's purported chastisement and criticism, including dates, times, or circumstances, such that it is unclear whether Hamel's actions related to his FMLA leave or if Plaintiff struggled with timely completing projects independent of his leave, or tardiness or other absences. Cf.Iqbal, 556 U.S. at 682 (an allegation is not plausible where there is an “obvious alternative explanation” for the alleged misconduct) (citation and internal quotations omitted); see also Munger v. Cascade Steel Rolling Mills, Inc., 544 F.Supp.3d 1078, 1084-85 (D. Or. June 17, 2021), aff'd, 2023 WL 128616 (9th Cir. 2023) (“[t]he Ninth Circuit has held that nothing in the FMLA prohibits an employer from disciplining an employee for noncompliance with the company's usual and customary attendance policies”) (internal brackets and quotations omitted).
In fact, most of these purported criticisms occurred prior to the bulk of Plaintiff's FMLA leave and appear to relate to his retaliation claim. See SAC ¶ 14 (doc. 52) (Plaintiff alleging that, towards the end of 2019, “[a]fter [he] submitted his gender-based discrimination complaint about Hamel and Hamel suspected [him] of complaining, Hamel [engaged in] the following retaliatory conduct”: the cold shoulder, social isolation, snide remarks, disrespectful emails, more work scrutiny, bad mouthing, and misleading reports about work performance and attendance); see also id. at pg. 8 (Plaintiff identifying a separate section of “FMLA Related Facts” that does not include the allegations). The only specific allegation the SAC even arguably makes regarding work-related criticisms is that, 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. Id. at ¶ 28. However, the SAC also reflects that Plaintiff timely complied, and there are no further facts indicating any follow-up or repercussions.
And, as discussed above, Plaintiff alleges nearly ten discrete FMLA leave periods, and there are no facts to suggest he was ever denied or discouraged from taking leave. Thus, for the same reasons discussed in Section I, any conclusion regarding interference would also be speculative here. See Stoss, 2014 WL 585946, at *5; see also Williams v. G&K Servs., Inc., 774 Fed.Appx. 369, 371 (9th Cir. 2019) (one “out-of-context statement” made upon the plaintiff's termination failed to establish interference). Defendants' motion is granted in this regard.
III. Termination
Although Plaintiff's final set of allegations pose a close call, the Court finds them sufficient at this stage in the proceedings to go forward. At least one court in this District has denied summary judgment in relation to causation based on the sequence of events leading up to the plaintiff's termination. See, e.g., Schultz v. Wells Fargo Bank, Nat'l Ass'n, 970 F.Supp.2d 1039, 1054-57 (D. Or. Sept. 5, 2013). In particular, Shultz denoted that, “[f]or a variety of reasons, some retaliators prefer to take their time,” such that courts must be “particularly sensitive” in viewing the underlying sequence of events and must “not . . . engage in a mechanical inquiry into the amount of time between protected conduct and an adverse action.” Id. at 1056-57 (citations and internal quotations omitted). Thus, Shultz found it instructive that the employer's treatment of the plaintiff “deteriorated even further upon [her] return from her third FMLA leave, at which time she immediately received a more negative annual performance evaluation, a demotion, and a transfer to smaller branch with allegedly inadequate banker support,” all leading up to her eventual termination months later. Id.
Here, Plaintiff alleges that on January 29, 2020, two days after he returned from his sixth FMLA leave, Hamel questioned his work performance. SAC ¶¶ 22, 42 (doc. 52). A week later, Hamel demoted Plaintiff. Id. at ¶ 25. Plaintiff's last FMLA leave ended on April 12, 2020. Id. at ¶ 48. On August 17, 2020, Welch denied Plaintiff's transfer request, “despite [Welch] telling [him] during the Ethics investigation that he could transfer out of Hamel's group.” Id. at ¶ 29. On January 20, 2021, Plaintiff offered to help address a problem articulated in a group email, but Hamel indicated that he “should have cleared it with [Hamel] before offering to help.” Id. at ¶ 30.
Approximately one month later, “after the . . . the protections afforded by [Plaintiff's] Ethics complaint expired,” Plaintiff's contract was not renewed, and Defendants declined to interview him for any related positions. Id. at ¶ 32.
Defendants do not squarely address Plaintiff's demotion, or the chronology of these events. Demotion certainly qualifies as an adverse employment action, and courts have found an analogous timeline sufficient to survive summary judgment. See Schultz, 970 F.Supp.2d at 105556 (“[t]he proximity of only a day or two between [the plaintiff's] return from her third leave and her transfer and demotion is sufficient to allow a factfinder to infer the requisite causation . . . [and] [t]ime periods of up to a year have been held to support a finding of causation at summary judgment”). Accordingly, Defendants' motion is denied as to this issue.
Finally, although the Court declines to dismiss Plaintiff's FMLA interference claim (or portions thereof) with prejudice, it does note that Plaintiff has already twice amended his complaint and has neglected to attempt to cure some of the deficiencies previously identified. Therefore, Plaintiff shall be afforded one final opportunity to seek amendment.
RECOMMENDATION
For the forgoing reasons, Defendants' Motion to Dismiss (doc. 55) should be granted in part and denied in part. 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.