Opinion
CV 01-1477-BR.
February 14, 2002
TOM STEENSON, BETH CREIGHTON, STEENSON, SCHUMAN, TEWKSBURY ROSE, P.C., Portland, OR., Attorneys for Plaintiffs.
PAULA A. BARRAN, BARRAN LIEBMAN LLP, Portland, OR., Attorneys for Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant's Motion to Dismiss and Strike (#6).
For the reasons that follow, the Court GRANTS in part and DENIES in part Defendant's Motion. The Court also grants Plaintiffs' Pate and Mote leave to replead their battery claims no later than February 25, 2002.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Amy Reddick, Amy Pate, Heather Mullen, and Dawn Mote are current or former employees of Defendant Hilton Hotels Corporation.
In their original Complaint, Plaintiffs alleged claims of sex discrimination and retaliation under both state and federal law; state law claims of battery, constructive discharge, negligent retention, and negligent supervision; and claims for equal pay under both state and federal law. After Defendant filed its Motion to Dismiss, Plaintiffs amended their Complaint and withdrew their negligent supervision and negligent retention claims.
All of Plaintiffs' claims arise from their employment at the Rose City Cafi located at the Portland Airport. Plaintiffs bring this action against Hilton Hotels Corporation only. Hilton Hotels is the parent corporation of Promus Hotel Corporation which owns Doubletree Corporation. Doubletree, in turn, owns Red Lion Hotels, Inc. which owns and manages the Rose City Café.
The corporate chain of ownership is set forth by Defendant in its Memorandum in Support of Motion to Dismiss and Strike. Defendant, however, does not assert Plaintiffs have named the wrong entity. The Court, therefore, assumes for the purposes of this Motion that Plaintiffs have named the correct corporate entity.
STANDARDS
On a motion to dismiss under Fed.R.Civ.P. 12(b), all allegations in the complaint are considered true and are construed in Plaintiffs' favor. Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir.), cert. denied, 120 S.Ct. 499 (1999). A court should not dismiss a complaint, thus depriving the plaintiff of an opportunity to establish his or her claims at trial, "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).ANALYSIS
I. The Battery Claims of Plaintiffs Pate and Mote as Alleged Are Insufficient .
State law governs the common law battery claims of Plaintiffs Pate and Mote. This Court must interpret and apply Oregon law as the Oregon Supreme Court would apply it. See S.D. Myers, Inc. v. City and County of San Francisco, 253 F.3d 461, 473 (9th Cir. 2001). If no decision by the Oregon Supreme Court is available to guide the Court's interpretation of state law, the Court must predict how the Oregon Supreme Court would decide the issue by using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance. Id.
Plaintiffs Pate and Mote allege "Hilton's employees made intentionally offensive contact" with them. Both Pate and Mote allege their supervisor, Jim Hulbert, "engaged in sexually offensive and hostile conduct." Each Plaintiff, however, alleges only one incident involving offensive contact: Pate alleges Hulbert pulled the side of her skirt, and Mote alleges Hulbert brushed up against her backside.
Defendant moves to dismiss Plaintiffs' battery claims because they are barred by the exclusive remedy provision of Oregon's Workers' Compensation Act, Or. Rev. Stat. Chapter 656. Under Oregon law, workers who are injured in the course of their employment are entitled to receive certain benefits from their employers and, with limited exceptions, those benefits are exclusive of all other remedies that would otherwise be available to the worker. See Or. Rev. Stat. § 656.018. See also Hanson v. Versarail Systems, Inc., 175 Or. App. 92, 95, 28 P.3d 626 (2001).
Plaintiffs Mote and Pate argue their battery claims fall within one of the exceptions to the exclusive remedy rule. Specifically, they argue Or. Rev. Stat. § 656.156(2) allows them to hold Defendant liable for an intentional battery by one of its employees. Or. Rev. Stat. § 656.156(2) provides a worker may sue her employer for damages "[i]f injury or death results to a worker from the deliberate intention of the employer of the worker to produce such injury or death."
Defendant contends a recent decision of the Oregon Court of Appeals compels dismissal of these battery claims. In Hansen v. Versarail Systems, Inc., the plaintiff brought a tort action against his employer and his supervisor for injuries sustained when his supervisor hit him. 175 Or. at 93. The employer moved for summary judgment and argued Hansen's assault and battery claims were barred by the exclusive remedy provision of the workers' compensation law. Id. The Oregon Court of Appeals held the exception for intentional injuries set forth in Or. Rev. Stat. § 656.156(2) did not apply. The court interpreted the statute to apply only "when the employer, not an employee, has acted deliberately and intentionally." Id. at 97. The court specifically rejected Hansen's argument that the doctrine of respondeat superior applies under Or. Rev. Stat. § 656.156(2).
Plaintiffs emphasize they are not seeking to hold Defendant liable on the basis of respondeat superior. They argue, moreover, that Hansen is distinguishable because it involved an isolated battery. Relying on Palmer v. Bi-Mart Company, Inc., 92 Or. App. 470, 758 P.2d 888 (1988), Plaintiffs assert their battery claims differ from the claim rejected in Hansen because "the injury resulting from the battery to plaintiffs is a direct result of the employer's conduct of maintaining and condoning an atmosphere charged with sexual harassment." In Palmer, the plaintiff filed a worker's compensation claim for "stress syndrome-due to pressure and harassment on the job" as a result of harassment by her supervisor over a period of four months. Her claim was accepted, and she received benefits from her employer's workers' compensation insurer. Palmer also brought an action against her employer for employment discrimination under Or. Rev. Stat. § 659.030 and for intentional infliction of emotional distress. The employer moved for summary judgment on the grounds that Palmer's tort claim was barred by the workers' compensation exclusive remedy provision and did not fall within the exception for intentionally-caused injuries. The court found the facts supported an inference that Palmer's supervisor had a specific intent to harm her. Palmer also alleged her employer "failed to stop a continuing course of intentional conduct aimed specifically at plaintiff after being informed of it." 92 Or. App. at 476. The court held this allegation, if proven, was sufficient to permit a jury to find the supervisor's action reflected the employer's deliberate intent to cause Palmer severe emotional distress.
Plaintiffs' battery allegations in this matter, however, are not analogous to those of the plaintiff in Palmer. Plaintiffs did not allege Hulbert's employer failed to stop a continuing course of battery after being informed of it. Plaintiffs also did not allege facts sufficient to establish an intent on the part of Hulbert's employer to injure them nor facts sufficient to establish the conduct of Hulbert's employer fell within the intentional act exception of the exclusive remedy rule. Plaintiffs Mote and Pate each alleged only a single incident of battery, and those allegations are no different from the plaintiffs' battery claims in Hansen. Although the Court concludes Plaintiffs have not alleged any facts from which a jury could infer Hilton intended to cause a battery, the Court also concludes it is not "beyond doubt" that Plaintiffs may be able to allege facts that show such an intent. Accordingly, the Court grants Hilton's Motion to Dismiss Plaintiffs' battery claims and gives Plaintiffs Pate and Mote leave to replead those claims.
II. Plaintiffs' Title VII Claims Are Not Premature
Hilton also moves to dismiss as premature the Title VII claims asserted by all Plaintiffs.
"An action brought under Title VII must be filed within ninety days of receipt of a right to sue letter from the EEOC or appropriate agency." Edwards v. Occidental Chemical Corporation, 892 F.2d 1442, 1445 (9th Cir. 1990) (citing 42 U.S.C. § 2000e-5(f)(1)). Plaintiffs filed their Complaint in this Court on October 15, 2001. The EEOC issued right-to-sue notices to each Plaintiff on October 18, 2001. Hilton contends the Complaint must be dismissed because Plaintiffs filed their Complaint three days before the EEOC issued the right-to-sue notices.
The Ninth Circuit addressed this issue in Edwards v. Occidental Chemical Corp. The court held:
A Title VII complainant may file an action prior to receiving her right to sue letter, provided there is not evidence showing that the premature filing precluded the state from performing its administrative duties or that the defendant was prejudiced by such filing.892 F.2d at 1445 n. 1 (citing Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1351 (9th Cir. 1984)). Hilton asserts Plaintiffs' premature filing "did in fact prevent the agency from acting." In support of this assertion, Hilton attaches a letter dated September 14, 2001, from its counsel to the state agency handling the investigation of Plaintiffs' claims. The letter, however, does not establish that Plaintiffs' filing of their Complaint "precluded the state from performing its administrative duties." There is no evidence the state agency took any action on Plaintiffs' claims — or refrained from doing so — between the time it received Hilton's September 14, 2001, letter and the date Plaintiffs filed their Complaint several weeks later. There is no evidence that shows the filing of Plaintiffs' Complaint three days early precluded the state from performing its administrative duties. Plaintiffs' receipt of the right-to-sue letters, in fact, cured any jurisdictional defects. See Wrighten, 726 F.2d at 1351. Accordingly, the Court denies Hilton's Motion to Dismiss Plaintiffs' Title VII claims as premature.
III. Hilton's Motion to Strike Is Moot .
Before Hilton filed its Motion, Plaintiffs conceded they were not entitled to a jury trial of their claims under Or. Rev. Stat. Chapter 659. Hilton, nonetheless, asks the Court to strike Plaintiffs' request for a jury trial. In light of Plaintiffs' concession, the Court denies Hilton's Motion to Strike as moot.
IV. Hilton's Motion to Dismiss Plaintiffs' Negligent Supervision and Negligent Retention Claims Is Moot.
After Hilton filed its Motion to Dismiss, Plaintiffs filed an Amended Complaint and withdrew their claims for negligent supervision and negligent retention. Hilton, nevertheless, asks the Court to rule on its Motion and to dismiss these nonexistent claims with prejudice. This Court, however, has no authority to rule on claims that are no longer before it.
CONCLUSION
For the reasons set forth herein, the Court GRANTS in part and DENIES in part Hilton's Motion to Dismiss and Strike (#6). The Court also grants Plaintiffs Pate and Mote leave to replead their battery claims no later than February 25, 2002.
IT IS SO ORDERED.