Opinion
3:23-cv-01301-JR
11-17-2023
ZACK JONES, Plaintiff, v. TARGET CORPORATION, Defendant.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Pro se plaintiff Zack Jones brings this action against defendant Target Corporation. Defendant moves to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, defendant's motion should be granted.
BACKGROUND
At all relevant times, plaintiff was employed at a store operated by defendant on Tomahawk Island Drive in Portland, Oregon. Compl. ¶¶ 4-5 (doc. 1). On May 19, 2023, “[w]hile plaintiff was in the [employee] break room, [a] Target store employee approached [him] and harassed him in a sexual nature.” Id. at ¶ 6. He reported the event to the nearest manager, and then filed a formal complaint with defendant's human resources department and the police. Id. at ¶¶ 7, 10-11. Plaintiff alleges defendant's Asset Protection Department told him surveillance footage of the incident existed and could be obtained by a law enforcement officer. Id. at ¶¶ 8-9. Shortly thereafter, plaintiff was told an internal “investigation concluded with no results”; he was not interviewed as part of that investigation. Id. at ¶¶ 12-13.
“The Portland Police and Detective requested the break room footage multiple times from the defendant's Asset Protection and HR departments but were told that aside from all other cameras in store functioning, that particular camera was not functioning and no footage was available.” Id. at ¶ 14. Plaintiff requested an alternate work option but was not provided with one. Id. at ¶ 17.
In July 2023, plaintiff initiated this action in Multnomah County Circuit Court alleging: (1) sexual harassment pursuant to Or. Admin. R. 839-005-0030(1)(b); (2) negligence pursuant to Or. Rev. Stat. § 654.305; (3) intentional infliction of emotional distress (“IIED”); (4) spoliation of evidence pursuant to Or. Rev. Stat. § 40.135(1)(c); (5) retaliation pursuant to Or. Rev. Stat. § 653.470; (6) failure to preserve evidence pursuant to Or. Rev. Stat. §§ 133.707 and 162.295(1)(a); and (7) civil conspiracy pursuant to Or. Rev. Stat. § 161.455. Plaintiff seeks $20,000,000 in damages and a letter of apology.
In September 2023, defendant timely removed plaintiff's complaint to this Court and subsequently filed the present motion to dismiss.
STANDARD
Where the plaintiff “fails to state a claim upon which relief can be granted,” the court must dismiss the action. 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 for the 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).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). The court, in many circumstances, instructs the pro se litigant regarding deficiencies in the complaint and grants leave to amend. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). Nevertheless, a pro se plaintiff's claims may be dismissed without leave to amend where it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him or her to relief. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008).
DISCUSSION
Defendant argues that prejudicial dismissal is warranted because plaintiff fails to allege sufficient facts to support his claims and “[m]ost of [the] defects are incurable as a matter of law.” Def.'s Mot. Dismiss 2 (doc. 7).
Conversely, plaintiff asserts his claims are legally cognizable and sufficiently pled. Pl.'s Resp. to Mot. Dismiss 5 (doc. 9).
I. Sexual Harassment-Hostile Work Environment
Defendant argues that plaintiff's sexual harassment-hostile work environment claim impermissibly consists of “a single, conclusory allegation.” Def.'s Mot. Dismiss 3 (doc. 7).
To state a plausible hostile work environment claim, the plaintiff must allege facts demonstrating: “(1) [he] was subjected to verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Craig v. M& O Agencies, Inc., 496 F.3d 1047, 1054 (9th Cir. 2007) (citation and internal quotations omitted).
State law claims pursuant to Chapter 659A are construed consistently with Title VII, such that “federal cases interpreting Title VII are instructive.” Shepard v. City of Portland, 829 F.Supp.2d 940, 954 (D. Or. 2011) (citations and internal quotations omitted).
In order to satisfy the third element, the conduct complained of must be both objectively and subjectively hostile or abusive. Id. (citations and internal quotations omitted). In making the objective determination, the court evaluates the totality of the circumstances, “including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (citations and internal quotations omitted). “The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.” Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001) (citation and internal quotations omitted).
Plaintiff broadly concludes that he was subject to sexual harassment that resulted in a hostile work environment, but his complaint does not contain well pled facts to support this claim.
For instance, plaintiff alleges he was “subject to sexual harassment” and that defendant “took no action to investigate or address the sexual harassment” despite “the presence of a camera,” but he does not state any details concerning what happened, how he felt about the occurrence, or how it affected his work environment. Compl. pgs. 4-5 (doc. 1); see also Gayden v. Ariz. Dep't of Econ. Sec., 2010 WL 2836925, *4 (D. Ariz. July 19, 2010) (pro se plaintiff “fail[ed] to allege a plausible hostile work environment claim because she did not provide facts to support her conclusory claim,” including what occurred, who was involved, and how it affected her work performance). Plaintiff alludes to video evidence, his human resources report, and his police report; while those resources may contain facts to support his claims, their mere existence does not provide this Court with the necessary facts to establish the first or third element.
Further, the complaint relies on a single incident of alleged harassment but does not provide facts that would allow this Court to assess the severity or seriousness of the incident. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“isolated incidents (unless extremely serious) will not amount to discriminatory changes in the “terms and conditions of employment”). Defendant's motion is granted as to plaintiff's hostile work environment claim.
II. Negligence
Defendant argues that plaintiff's negligence claim under Or. Rev. Stat. § 654.305, the Employer's Liability Act (“ELA”), must be dismissed because “he does not allege that he worked for another entity that was working with Target on any common enterprise” or that he was “engaged in any ‘risk producing activity.'” Def.'s Mot. Dismiss 6-7 (doc. 7).
“Traditional negligence per se actions rest on the premise that a court has created, or should now be willing to create, a common law negligence action for persons like the plaintiff . . . A violation of a relevant statute [is] prima facie evidence of negligence, which can be rebutted by evidence that the defendant's conduct was nevertheless reasonable under the circumstances.” Williams v. Invenergy, LLC, 2014 WL 7186854, *7-8 (D. Or. Dec. 16, 2014) (internal citations, quotations, and brackets omitted). Thus, to state a negligence claim in this context, the plaintiff must allege facts demonstrating: (1) the defendant violated a statue; (2) the plaintiff was injured as a result of that violation; (3) the plaintiff was a member of the class of persons the statute intended to protect; and (4) the plaintiff suffered an injury of the type the statute was meant to prevent. McAlpine v. Multnomah Cnty., 131 Or.App. 136, 144, 883 P.2d 869 (1994).
The ELA imposes a heightened standard of care on an employer who is “in charge of, or responsible for, any work involving risk or danger.” Woodbury v. CH2M Hill, Inc. 335 Or. 154, 159, 61 P.3d 918 (2003). Under that heightened standard of care:
Generally, all owners, contractors or subcontractors and other persons having charge of, or responsibility for, any work involving a risk or danger to the employees or the public shall use every device, care and precaution that is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices.Or. Rev. Stat. § 654.305. Although indirect employers are often the subject of litigation under the ELA, it “applies both to direct and indirect employers.” Thom v. Rokstad Power Inc., 2023 WL 4975963, *1 (D. Or. Aug. 2, 2023) (internal citations omitted).
Plaintiff does not allege facts demonstrating that, at the time of the alleged harassment, he was engaged in work involving risk or danger. Rather, plaintiff states he was on break in an employee break room, thus not involved in work at all, let alone risk producing work. See Compl. ¶¶ 5-6 (doc. 1). Therefore, while plaintiff may bring an ELA claim against his direct employer, he fails to allege facts demonstrating that defendant violated the ELA. Defendant's motion is granted as to plaintiff's negligence claim.
In his response, plaintiff appears to abandon the statutory basis of his negligence claim and instead argues that an employer may be held liable for creating a hostile work environment under federal or state law through negligence (i.e., failing to correct or prevent discriminatory conduct by an employee). Pl.'s Resp. to Mot. Dismiss 7 (doc. 9). However, when reviewing a Rule 12(b)(6) motion, “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.” Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (emphasis in original; citation omitted).
III. Intentional Infliction of Emotional Distress
Defendant argues that plaintiff's IIED claim fails because “he does not allege that Target committed a tortious act” and “there is no allegations of an extraordinary transgression.” Def.'s Mot. Dismiss 7 (doc. 7).
To state an IIED claim, a plaintiff must allege: “(1) that defendants intended to cause plaintiff severe emotional distress or knew with substantial certainty that their conduct would cause such distress; (2) that defendants engaged in outrageous conduct, i.e., conduct extraordinarily beyond the bounds of socially tolerable behavior; and (3) that defendants' conduct in fact caused plaintiff severe emotional distress.” House v. Hicks, 218 Or.App. 348, 357-58, 179 P.3d 730 (2008) (citation omitted). In regard to the second element, the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. at 358 (citation and internal quotations omitted). While “the inquiry is fact-specific, the question of whether the defendant's conduct exceeded the farthest reaches of socially tolerable behavior” is, initially, “a question of law” for the court. Gordon v. Kleinfelder W., Inc., 2012 WL 844200, *14 (D. Or. Mar. 12, 2012) (citation and internal quotations omitted).
Plaintiff broadly concludes that defendant committed IIED but does not plead facts to support his claim. For instance, plaintiff asserts that defendant acted in an outrageous manner with willful disregard for his well-being but includes no facts about the underlying incident to support this legal conclusion. Compl. pg. 6 (doc. 1). And case law makes clear that failing to prevent or investigate sexual harassment does not amount to conduct that could support an IIED claim. See, e.g., Lewis v. Or. Beauty Supply Co., 302 Or. 616, 627-28, 733 P.2d 430 (1987), overruled in part on other grounds by McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841 (1995); Wheeler v. Marathon Printing, Inc., 157 Or.App. 290, 308, 974 P.2d 207 (1998); see also Justice v. Rockwell Collins, Inc., 117 F.Supp.3d 1119, 1143-44 (D. Or. 2015), aff'd, 720 Fed.Appx. 365 (9th Cir. 2017) (“it is well-settled that workplace sexual harassment that results in IIED and battery is motivated by purely personal desires” and is therefore insufficient to establish employer liability in this context) (citation and internal quotations omitted). Defendant's motion to dismiss is granted as to plaintiff's IIED claim.
IV. Spoliation of Evidence and Failure to Preserve Evidence
Defendant argues that plaintiff's claims of spoliation and failure to preserve evidence must be dismissed because the cited statutes do not provide a private right of action. Def.'s Mot. Dismiss 8-9 (doc. 7). Further, according to defendant, “Oregon does not recognize a tort for negligent or intentional spoliation.” Id. at 9.
Plaintiff has not cited to, and the Court is not aware of, any case law to support the existence of a private right of action under any of the three statutes cited in the complaint - i.e., Or. Rev. Stat. §§ 40.135(1)(c), 133.707, and 162.295(1)(a) - which concern evidentiary presumptions, the preservation of biological evidence in a criminal investigation, and the crime of tampering with physical evidence, respectively.
Moreover,
[w]hile the Oregon Supreme Court has yet to address intentional or negligent spoliation of evidence as an independent cause of action, the Court of Appeals has, without defining its precise contours, suggested that such a claim exists. See, e.g., Marcum v. Adventist Health Sys./W., 215 Or.App. 166, 190-92, 168 P.3d 1214 (2007), rev'd on other grounds, 345 Or. 237, 193 P.3d 1 (2008); Classen v. Arete NW, LLC, 254 Or.App. 216, 221-26, 294 P.3d 520 (2012). In addition, a district court from outside of the Ninth Circuit has held that the Oregon Supreme Court would recognize claims for intentional and negligent spoliation. See In re Helicopter Crash Near Wendle Creek, B.C., On Aug. 8, 2002, 2009 WL 1391422, *l-2 (D. Conn. May 18, 2009). This District, however, has expressly rejected the viability of an intentional spoliation claim under Oregon law. See Blincoe v. W. States Chiropractic Coll., 2007 WL 2071916, *7-9 (D. Or. July 14, 2007) (citations omitted).
The foregoing demonstrates that, far from clarifying this issue, courts from both within and outside of Oregon have struggled with whether the relevant sources of law establish spoliation of evidence as an independent cause of action.Verd v. I-Flow, LLC, 2013 WL 2178081, *5 (D. Or. May 14, 2013).
Regardless of this ambiguity, it is well-settled that a spoliation claim must be dismissed where, as here, the underlying claims have also been dismissed. See, e.g., id.; Nat'l Interstate Ins. v. Beall Corp., 2015 WL 1137440, *4 (D. Or. Mar. 11, 2015). Defendant's motion is granted as to plaintiff's spoliation of evidence and failure to preserve evidence claims.
V. Retaliation
Defendant argues that plaintiff's claim for retaliation must be dismissed because he brings it “under ORS 653.470” - i.e., “Oregon's predictive scheduling law” - which does not appear to be applicable given the facts alleged. Def.'s Mot. Dismiss 9 (doc. 7).
Section 653.470 provides it is unlawful for an employer to “[r]etaliate or in any way discriminate against an individual with respect to hire or tenure or any other term or condition of employment because the individual has inquired about the provisions of ORS 653.412 to 653.485.”
The statutes referenced, Or. Rev. Stat. §§ 653.412 to 653.485, relate to Oregon's predictive scheduling laws, in which there is no mention of retaliation for reporting sexual harassment, and plaintiff does not allege any wrongdoing in association with his weekly schedule or break periods. Further, this Court can find no case law applying the aforementioned statutes to analogous facts. Defendant's motion is granted as to plaintiff's retaliation claim.
VI. Civil Conspiracy
Defendant argues that plaintiff's civil conspiracy claim should be dismissed because he does not allege the involvement of two or more people. Def.'s Mot. Dismiss 10 (doc. 7).
In Oregon, a valid civil conspiracy claim requires “a combination of two or more persons by concerted action to accomplish an unlawful purpose, or to accomplish some purpose not in itself unlawful by unlawful means.” Yanney v. Koehler, 147 Or.App. 269, 279, 935 P.2d 1235 (1997) (quoting Bonds v. Landers, 279 Or. 169, 174, 566 P.2d 513 (1977)) (citations omitted). The claim must allege facts showing: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof. Id.
Plaintiff's allegations do not identify two or more persons or entities that engaged in conspiracy. Defendant cannot conspire with employees or departments within its own corporation to commit civil conspiracy. See Bliss v. S. Pac. Co., 212 Or. 634, 643, 321 P.2d 324 (1958) (“‘A corporation cannot conspire with itself any more than a private individual can, and it is a general rule that the acts of the agents are the acts of the corporation.'”) (quoting Nelson Radio & Supply Co., Inc., v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952)); see also Morasch v. Hood, 232 Or.App. 392, 402, 222 P.3d 1125 (2009) (“civil conspiracy is not, itself, a separate tort for which damages may be recovered; rather, it is a way in which a person may become jointly liable for another's tortious conduct”) (citation and internal brackets and quotations omitted). The Oregon Supreme Court acknowledged that a claim for conspiracy may lie if employees of a corporation are acting individually for personal benefit, but there are no facts in plaintiff's complaint to that effect. See Bliss, 212 Or. at 644.
Further, plaintiff alleges no facts related to the remaining elements of his civil conspiracy claim. For instance, plaintiff concludes defendant “obstructed] justice or cover[ed] up the harassment incident” through unlawful acts, including “spoliation of evidence,” but there is no indication from the complaint that video of the breakroom incident actually existed; rather, the complaint reflects that the breakroom had a camera but video could not be produced (even to law enforcement) because the camera “was not functioning at the time.” Compl. pgs. 4, 11-12 (doc. 1). Plaintiff deems this a “lie” because “all other cameras in the store [were] functioning” but that is not plausible given the dearth of well-plead facts. Id. at ¶ 16; see also Iqbal, 556 U.S. at 682 (an allegation is not plausible where there is an “obvious alternative explanation” for the alleged misconduct). Defendant's motion to dismiss is granted as to plaintiffs civil conspiracy claim.
As addressed herein, plaintiff's complaint is deficient. However, the Court cannot conclude that plaintiff is unable to state a claim as a matter of law given that he is proceeding without the benefit of legal counsel and has not yet had the opportunity to seek amendment. See Barrett, 544 F.3d at 1061-62 (pro se claims may be dismissed with prejudice only where it appears beyond doubt the plaintiff can prove no set of facts that would entitle him to relief). Accordingly, the Court does not find that prejudicial dismissal is warranted at this juncture.
RECOMMENDATION
For the foregoing reasons, defendant's Motion to Dismiss (doc. 7) should be granted. The parties' requests for oral argument are 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 judgment 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 a 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 fact in an order or judgment entered pursuant to this recommendation.