Opinion
6:23-cv-00690-MK
10-27-2023
KIMMIE JACKSON; and ANITA SITES, Plaintiffs, v. CITY OF YACHATS, Defendant.
FINDINGS AND RECOMMENDATION RE: DEFENDANT'S MOTION TO STRIKE OR MOTION FOR A MORE DEFINITE STATEMENT
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
Plaintiffs Kimmie Jackson and Anita Sites (“Plaintiffs”) are former employees of Defendant City of Yachats. Pls.' Complaint ¶¶6-7, ECF No. 1. Plaintiffs allege eight claims for relief arising out of retaliation, medical leave interference, violation of the Equal Pay Act, and discrimination of race and disability. Id. at ¶¶113-144. Defendant timely filed this Motion To Strike, or, in the alternative, Make More Definite pursuant to Fed.R.Civ.P. 12(e)-(f). Def.'s Mot. To Strike, 2, ECF. No. 8. After reviewing the parties' briefs, there is no need for oral argument to clarify the issues. For the reasons stated below, Defendant's Motion to Strike should be DENIED and its Motion to Make a More Definite Statement should be GRANTED, in part.
BACKGROUND
For the purposes of this Motion, Plaintiffs' allegations in the Complaint are taken as true. Plaintiff Jackson began working for Defendant in 2011 and was the only BIPOC employee until Plaintiff Site's hiring in 2019. Pls.' Complaint ¶¶ 10, 52-53. Generally, Plaintiffs allege that they were subject to racially motivated harassment from employees, paid less than white colleagues despite doing the same work, unjustifiably overlooked for promotion, and retaliated against for alleging disparate treatment. Id. at ¶¶14-51, 54-107. Plaintiff Jackson also alleges that she was discriminated based on her disability. Id. ¶¶75-95. On January 21, 2022, Plaintiff Jackson filed a tort claims notice. Id. at ¶73. Plaintiffs filed their Complaint on May 10, 2023.
DISCUSSION
Defendant moves the Court to strike what it argues are untimely allegations in Plaintiffs' complaint. Mot. To Strike 3. In the alternative, Defendant moves for a more definite statement, arguing that “many of Plaintiffs' allegations are so vague that the City cannot respond[.]” Id. at 6.
I. Motion To Strike - Fed.R.Civ.P. 12(f)
Defendant may move the court to strike pleadings that are “immaterial” or “impertinent” under Rule 12(f). An “immaterial” matter is “that which has no essential or important relationship to the claim for relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994) (quoting C. Wright, A. Miller, et al., 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed. 2013)). “Impertinent” matters are those “that do not pertain, and are not necessary, to the issues in question.” Id. The purpose of a Rule 12(f) motion is to avoid spending time and money litigating spurious issues. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010). “Motions to strike are disfavored and infrequently granted.” Legal Aid Servs. of Oregon v. Legal Servs. Corp., 561 F.Supp.2d 1187, 1189 (D. Or. 2008). The disposition of a motion to strike is within the discretion of the district court. See Fed. Sav. & Loan Ins. Corp. v. Gemini Mgmt., 921 F.2d 241, 244 (9th Cir. 1990).
A. Plaintiffs Allege a Continuing Violation
Here, Defendant argues that Plaintiff Jackson alleges discrete violations that should be struck for untimeliness. Mot. To Strike 3. In response, Plaintiffs dispute the nature and timeliness of those claims and argue that regardless, Plaintiff Jackson's allegations provide relevant background information in support of other claims. Pls.' Resp. 4-6.
Under the Oregon Tort Claims Act, when suing a public entity, plaintiffs are required to provide notice of their claims within 180 days of their injury. Or. Rev. Stat. § 30.275(1)-(2); see Tyree v. Tyree, 116 Or.App. 317, 319 (1992) (affirming dismissal because of plaintiffs untimely notice). When a plaintiff alleges a discrete act of discrimination, the plaintiff must give notice of their intent to bring a claim within 180 days of the alleged discrimination. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). “[T]he limitations period will begin to run for each individual claim from the date on which the underlying act occurs.” Lyons v. England, 307 F.3d 1092, 1106-07 (9th Cir. 2002).
While separate incidents of discrimination and retaliation may be related, such as failure to promote and termination, those incidents are nonetheless discrete acts and do not establish a continuing violation. Morgan, 536 U.S. at 114. However, when a plaintiff alleges a claim “based on the cumulative effect of individual acts[,]” the plaintiff may rely on allegations that occurred outside the statutory period as evidence that the employer knew or should have known of its existence. Id. at 115 (hostile work environment); citing 1 B. Lindemann & P. Grossman, Employment Discrimination Law 348-349 (3d ed.1996); see also Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 638 (9th Cir. 2002) (discriminatory policies or practices). While separate incidents of discrimination and retaliation may be related, such as failure to promote and termination, those incidents are nonetheless discrete acts and do not establish a continuing violation. Morgan, 536 U.S. at 114.
In contrast, when a plaintiff alleges a continuing violation claim “based on the cumulative effect of individual acts[,]” the plaintiff may rely on allegations that occurred outside the statutory period as evidence that the employer knew or should have known of its existence. Id. at 115 (hostile work environment); citing 1 B. Lindemann & P. Grossman, Employment Discrimination Law 348-349 (3d ed.1996); see also Freeman, 291 F.3d at 638 (discriminatory policies or practices). For example, the very nature of a hostile work environment claim involves repeated conduct that “cannot be said to occur on any particular day.” Id. at 115. Therefore, injuries that occurred 180 days before the plaintiff's notice may still be recoverable. Id. at 11617. “A court's task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period.” Id. at 120. In determining whether the plaintiff alleged a continuing violation, “the emphasis should not be placed on the mere continuity; the critical question is whether any present violation exists. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (no continuing violation where plaintiff did not allege systemic discrimination) (emphasis removed).
Defendant City of Yachats is a public entity protected by the strict notice requirements of the Oregon Tort Claims Act. Defendant claims that it received notice of Plaintiff Jackson's claims when she filed a Tort Claim Notice on January 21, 2022. Def.'s Mot. 3. Defendant moves to strike any allegation that took place before July 25, 2021 (180 days before January 21, 2022).Def.'s Mot. 3. Defendant argues that Plaintiffs may not use related acts of discrimination that occurred prior to July 25, 2021 to establish a continuing violation. Id. at 5. Some of Plaintiffs' allegations appear to date back to 2017. Id. at 4. Defendant also argues that Plaintiffs' “Oregon state statuary discrimination and retaliation claims are not subject to a continuing violation.” Id.; Def.'s Reply 2, ECF No. 14. However, in Oregon, claims of racial discrimination in employment are assessed under the same framework as Title VII claims. Freyd v. Univ. of Oregon, 990 F.3d 1211, 1229 (9th Cir. 2021).
Defendant also argues that the Court should strike allegations that took place between January 22, 2022 (the day after Plaintiffs filed their Tort Claim Notice) and November 11, 2022 (180 days prior to the filing of the Complaint). Def.'s Mot. 4. Because the Court finds that Plaintiffs have alleged a continuing violation, Defendant's additional argument is not addressed separately.
Plaintiffs allege systemic discrimination and harassment. Pls.' Complaint ¶¶17, 56. To the extent Plaintiffs allege a hostile work environment or other continuing violations, those allegations are relevant, not immaterial, and should not be stricken. See Fantasy, Inc., 984 F.2d at 1527.
B. Plaintiffs Allege Relevant Background Information
In a discrimination claim, “appropriate background evidence will be any evidence that tends to prove the employer's discriminatory intent or otherwise to disprove the proffered legitimate reason.” Lyons v. England, 307 F.3d 1092, 1111 (9th Cir. 2002); Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981) (plaintiff has the “not onerous” burden of alleging “circumstances which give rise to an inference of unlawful discrimination”). “The existence of past acts and the employee's prior knowledge of their occurrence . . . does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed.” Morgan, 536 U.S. at 113.
Defendant does not argue that none of the allegations in the Complaint are timely, and indeed, some of the allegations clearly occurred after Defendant's claimed cutoff date of July 25, 2021. See e.g., Pl.'s Complaint ¶ 54-55. Accordingly, nothing prevents Plaintiffs “from using the prior acts as background evidence in support of a timely claim.” Morgan, 536 U.S. at 113.
II. Motion For A More Definite Statement - Fed.R.Civ.P. 12(e)
When the plaintiff's pleading “is so vague or ambiguous that the party cannot reasonably prepare a response[,]” the defendant may move the court to order a more definite statement under Rule 12(e). The Rule “is designed to strike at unintelligibility rather than want of detail.” Maixner v. Bank of Am. Home Loans, No. CIV. 10-3037-CL, 2010 WL 5918860, at *3 (D. Or. Nov. 18, 2010), report and recommendation adopted, No. CIV. 10-3037-CL, 2011 WL 825201 (D. Or. Mar. 3, 2011) (citing Bautista v. Los Angeles Cnty., 216 F.3d 837, 843 n.1 (9th Cir. 2000) (concurrence)); see also Bertucelli v. Carreras, 467 F.2d 214, 215 (9th Cir. 1972) (court may properly strike unintelligible complaint).
Defendant asks the Court to order Plaintiffs to amend their complaint to include additional names, dates, and context. Mot. To Strike 6. The Court does not find Plaintiffs' Complaint so unintelligible or indefinite that Defendant cannot ascertain the nature of the claims being asserted. However, Plaintiffs should be required to provide a month and year in paragraphs 56-108 of the Complaint. Given the timespan over which these allegations are made, requiring some temporal specificity is reasonably necessary. The other details Defendant seeks are aptly available through the discovery process. The Court should GRANT, in part, Defendant's motion to make Plaintiffs' claims more definite.
RECOMMENDATION
For these reasons, Defendant's Motion To Strike (ECF No. 8) should be DENIED. Defendant's alternative Motion For A More Definite Statement (ECF No. 8) should be GRANTED, in part.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).