Opinion
3:21-cv-01387-AR
07-06-2023
TAFIKO SALU, Plaintiff, v. MULTNOMAH COUNTY, Defendant.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD, UNITED STATES MAGISTRATE JUDGE
Plaintiff Tafiko Salu is a male of Pacific Islander descent employed by defendant Multnomah County as a Custody Service Specialist at the Donald E. Long Detention Center, where his primary duties include “guidance, security, and general care of youth who present a variety of behavioral, cognitive, emotional, and intellectual issues.” (Compl. ¶ 2, ECF No. 1.) Salu asserts four claims against the County, alleging that throughout his employment, he has been discriminated and retaliated against on the basis of gender and race, in violation of ORS § 659A.030 and 42 U.S.C. § 2000e. (Id. ¶¶ 10-21.)
After this action was filed in September 2021, the parties engaged in discovery for two years, which included taking twelve depositions. Following three extensions, the discovery deadline closed on March 31, 2023. (Order, ECF Nos. 10, 16, 24.) The parties engaged in an unsuccessful mediation attempt on May 8, 2023. (Minutes of Proceeding, ECF No. 26.) Subsequently, on May 22, 2023, Salu moved under Federal Rule of Civil Procedure 15(a)(2) for leave to amend his complaint to assert four new retaliation claims against the County based on deposition testimony and events in November and December 2022. (Pl.'s Mot. Am., ECF No. 30.) The parties agree that, if amendment is granted, discovery will need to be reopened to evaluate the merits of those new claims. (See id. at 3 (“Plaintiffs will not object to extending that time for any additional discovery[.]”); Def.'s Resp. at 2, ECF No. 32 (stating that “amendment would likely require Plaintiff to conduct a second round of depositions”).) Multnomah County opposes the requested amendments.
As explained below, because the proposed amendments cause undue delay at this stage in the litigation and unfairly prejudice the County, Salu's motion to amend should be denied.
BACKGROUND
Salu presently asserts four claims for retaliation and discrimination against the County. In Claim 1, he alleges that the County subjected him to gender-based discrimination on at least four occasions. (Compl. ¶ 4.) On November 8, 2020, Salu was “forced to leave his assigned shift to cover Bravo pod and his shift was covered by” a female custody specialist. Salu's supervisor told him that “they wanted to replace a female staff that is available . . . with a male staff.” On February 27, 2021, Salu was orally warned by Community Justice Manager Carla Hardnett about allegedly not wearing the proper uniform, even though Hardnett was not following uniform policy on that day and “failed to follow the county's unform policy on other occasions,” without discipline. On January 5, 2021, a senior manager told Salu and other custody service specialists that men were required to work in the C1 unit; she then ordered Salu or another male employee to switch positions with a female employee assigned to that unit. The other male employee volunteered to have his position switched that day. Finally, on January 15, 2021, Salu's supervisor, Kim Hernandez, ordered him or another male employee to switch shifts with a female custody service specialist, Lela Clay. When Clay protested that she did not want to switch positions, Hernandez reversed her order and no positions were switched on that day.
In Claim 2, Salu alleges that he also experienced race-based discrimination on the following occasions. (Compl. ¶¶ 5-6.) On February 12, 2020, Hardnett ordered him to cover Alpha Pod instead of a white male, specifically stating that she “wanted to remove the white staff member from this position.” On March 23, 2020, while Salu was assigned to Charlie 2 Pod, he was ordered to switch shifts with a white male employee, while “an on-call female employee of Hispanic descent” was moved to his original shift. Salu alleges that, “[i]n these situations, it is standard procedure to move on-call employees before switching a permanent employee such as [himself].” On April 28, 2021, Hernandez ordered Salu to move from his original shift in Charlie Pod 2 to a “‘constant watch' position with specific youth,” even though it “is standard practice to move employees over from Intake unit instead of moving employees from a position in one of the Pods.” At that time, a white male custody service specialist and another employee were working in intake but neither were moved. Salu alleges that he and another employee of Pacific Islander descent have been disciplined by Hardnett for not wearing their uniforms properly, but that a white male employee “has not worn his jacket as required, but has not been disciplined by Ms. Hardnett.”
Salu also alleges that he has been “subjected to racial discrimination by being denied a light duty work assignment.” Around the end of July 2019, Salu was on leave due to a work-sustained injury, for which he was cleared for “light duty” work by his doctor on August 27, 2019. (Id. ¶ 6.) When Salu tried to return to work, Hernandez told him that ‘he needed to be fully healed before returning to work because no light duty work was available.” Salu alleges, however, that the County has “allowed white and female custody service agents to engage in light duty work.” He asserts that another custody service specialist of Pacific Islander descent also was denied light duty work. Salu was cleared for full duty on October 27, 2019, and returned to his regular work schedule at that time. While on leave, he received a third of his regular pay through disability benefits and contends that he should have been allowed to work light duty for two months at his regular rate of pay.
In Claim 3, Salu alleges that, after he spoke out about “the discriminatory practices of [the County]” on numerous occasions, the County retaliated against him in the following ways. (Id. ¶ 7.) On March 26, 2021, he was given a “Notice of Proposed One Day Suspension” for “allegedly displaying harassing and intimidating behavior towards his coworkers”-a reason that Salu contends was a “pretext” because that disciplinary action took place shortly after he had complained about racial and gender discrimination. On May 24, 2021, while Salu was working his normal shift in the Charlie 2 Pod, Hardnett ordered him to switch positions with a white male who was on constant watch for one of the youths. Hardnett also switched another minority custody service specialist with that white male specialist, so that Salu and the other minority specialist “alternated on being constant watch,” while the white male specialist worked in the Alpha Pod 2 instead of his original shift.
In Claim 4, Salu alleges that the County discriminated against him on the basis of gender because, around June 2020, he was “passed over for a promotion to Charlie Pod Lead.” (Id. ¶¶ 8, 19-21.) Instead, a female employee named Marisol Hsu was promoted. At the time of her promotion, Hsu had 14 months of experience as a non-probationary Juvenile Custody Service Specialist. In contrast, Salu has around 25 years of experience in that position. A year later, in June 2021, Salu was promoted to the position of Charlie Pod Lead about five months after he sent the County a tort claim notice relating to this action. Salu alleges that, had he not been discriminated against, he would have received a six percent increase in his base pay rate of $33/hour in June 2020.
LEGAL STANDARD
After the initial pleading stage, a plaintiff may amend his “pleading only with the opposing party's written consent or the courts leave.” FED. R. CIV. P. 15(a). The court freely gives leave to amend “when justice so requires,” id., because the purpose of the rule “is ‘to facilitate decision on the merits, rather than on the pleadings or technicalities.'” Novak v. United States, 795 F.3d 1012, 1020 (9th Cir. 2015) (quoting Chudacoff v. Univ. Med. Ctr., 649 F.3d 1143, 1152 (9th Cir. 2011)). A motion to amend is not automatically granted, however. In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013). The court may, in its discretion, deny a motion to amend if (1) amendment would prejudice the opposing party; (2) the motion was made in bad faith; (3) amendment would cause undue delay in the litigation; or (4) the proposed amendment is futile for lack of merit. AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006); Thomsen v. NaphCare, Inc., Case No. 3:19-cv-00969-AC, 2021 WL 6775438, at *2 (D. Or. Nov. 5, 2021) (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987)).
Those factors are not weighted equally. Undue delay, without more, is generally not enough to justify denying a motion to amend. Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999). Prejudice to the opposing party carries the most weight. Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). And “futility of amendment alone can justify the denial of a motion [to amend].” Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir. 2009).
DISCUSSION
Salu proposes to amend his complaint to assert four new retaliation claims against the County. (Pl.'s Mot. Am. at 1-3, Ex. 1.) In Claim 5, Salu requests leave to assert a gender-based retaliation claim under ORS § 659A.030(1)(f) based on the denial of his application for a promotion to Community Justice Manager in 2020. Claim 5 would rest on the following factual allegations:
In 2020, Plaintiff applied and interviewed for a Community Justice Manager position at that Donald E. Long facility. The only other person scheduled for an interview was Tammy Cox, a fellow Custody Service Specialist. However, Ms. Cox requested that she be withdrawn from consideration, leaving Plaintiff the only person who was interviewed for the job. Despite this fact and despite Plaintiff's 25+ years of experience as a Custody Service Specialist, he did not get the job. Defendants ended up hiring Carl Johnson, a JCSS who did not even apply for that particular job. In 2022, Lela Clay (another Custody Service Specialist who was on Plaintiff's interview panel) testified that Plaintiff was not selected for the job because other managers were concerned about his, “past behavior[.]”
Prior to being interviewed for this position, Plaintiff wrote up a discrimination complaint in 2019 that he was going to give to his union. Around this time, Rosa Garcia (a Community Justice Manager and one of Plaintiff's supervisors) went
into Plaintiff's section of the ‘C' drive (a folder on the computer network where employees can keep documents) and found a draft of this complaint. Ms. Garcia printed it out and then handed it to Plaintiff, telling him that she found it on the ‘C' drive and that it is “serious stuff[.]” Ms. Garcia was one of the managers on his interview panel for the CJM position in 2020.(Pl.'s Mot. Am., Ex. 1 ¶¶ 12-13, 30-31 (emphasis added).)
The other three proposed claims would allege retaliation under ORS § 659A.030(1)(f) based on events alleged to have occurred in November and December 2022. (Id. ¶¶ 14-16, 3339.) In Claims 6 and 7, Salu proposes to assert that, in November 2022, the county retaliated against him for his past complaints of gender and racial discrimination by not selecting him for the positions of Community Justice Manager and Juvenile Court Counselor. (Id. ¶¶ 14-16, 3339.) In Claim 8, he asserts that, on December 23, 2022, the county retaliated against him by threatening discipline when he rescinded his agreement to work an overtime shift during inclement weather. (Id. ¶¶ 16, 39-41.) Salu alleges that the threatened discipline was “pretextual,” that the collective bargaining agreement between his union and the County “makes it clear that cancelling an overtime shift in this manner is not subject to discipline,” and that other employees have canceled overtime shifts without facing discipline. (Id. ¶¶ 16, 41.)
A. Claim 5 and Rule 15(c) Argument
As an initial matter, Salu argues that, because Claim 5 is based on events that took place in 2020, he should be granted leave to amend under the “relation back” theory of Federal Rule of Civil Procedure 15(c). Under Rule 15(c)(1), an amendment to a pleading relates back to the date of the original pleading when “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading[.]” FED. R. CIV. P. 15(c)(1)(B). “Claims arise out of the same conduct, transaction, or occurrence if they ‘share a common core of operative facts' such that the plaintiff will rely on the same evidence to prove each claim.” Williams v. Boeing Co., 517 F.3d 1120, 1133 (9th Cir. 2008) (quoting Martell v. Trilogy Ltd., 872 F.2d 322, 325 (9th Cir. 1989)).
To support his argument that amendment under Rule 15(c) is appropriate, Salu offers only the conclusory assertion that Claim 5 arises “out of the same conduct, transactions, and occurrences that were laid out in the original pleading.” He does not explain how Claim 5, which details retaliation based on discrete allegations that Salu was denied a promotion to Community Justice Manager, shares a common core of operative fact with his existing claims, which are based on specific allegations of misconduct unrelated to that promotion opportunity. Because Salu does not offer a developed argument that Claim 5 “relates back” to any of his existing claims, the court recommends denying his request for amendment under Rule 15(c).
B. All Claims and Rule 15(a) Arguments
The County argues that Salu's motion to amend should be denied because all of his proposed claims are futile, unduly delayed, and cause unfair prejudice. (Def.'s Resp. at 3.) Because futility alone can justify the denial of a motion to amend, the court examines that factor first. See Ahlmeyer, 555 F.3d at 1055. An amendment is futile “only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense.” Barahona v. Union Pac. R.R. Co., 881 F.3d 1122, 1134 (9th Cir. 2018) (quoting Sweaney v. Ada Cnty., 119 F.3d 1385, 1393 (9th Cir. 1997)).
The County argues that amendment is futile because Salu did not provide it with timely notice of the proposed claims as required by the Oregon Tort Claims Act (OTCA), ORS § 30.275. The OTCA's notice provision mandates that, before bringing an action “arising from any act or omission of a public body or an officer, employee or agent of a public body,” a plaintiff must provide the defendant with notice of the tort claims “within 180 days after the alleged loss or injury.” ORS § 30.275(2)(b). “Notice” may be formal or actual. Id. § 30.275(3). “Formal notice” of a claim is satisfied by “a written communication from a claimant or [claimant's] representative” stating that a claim for damages will be asserted against the public body and providing a description of the time, place, and circumstances giving rise to the claim, and the name and mailing address of the claimant. Id. § 30.275(4). “Actual notice” of a claim is satisfied by “any communication by which any individual to whom notice may be given . . . acquires actual knowledge of the time, place and circumstances giving rise to the claim, where the communication is such that a reasonable person would conclude that a particular person intends to assert a claim against the public body[.]” Id. § 30.275(6).
The County's futility argument is not well taken because, as Salu points out, he did provide the County with timely notice of the proposed claims by email. Salu states that “the full extent” of the facts giving rise to Claim 5 were known to him at the deposition of Lela Clay, which was taken on December 1, 2022, and that the events underpinning Claims 6, 7, and 8 arose in November and December 2022. (Pl.'s Reply at 2, ECF No. 33.) On February 8, 2023-well within 180 days of December 1, 2022-Salu's counsel, Justin Steffen, emailed the County's counsel, Ashley Bannon Moore, informing her that he intended to seek amendment of his complaint. (Steffen Decl. ¶ 2, ECF No. 34.) Because that email “included detailed allegations related to the new claims” that Salu intended to bring against the County, the court finds that the County had timely notice of the proposed claims. Thus, Salu's proposed claims complied with the OTCA's notice requirement, and his motion should not be denied on futility grounds.
Nevertheless, the court recommends denying Salu's motion on the grounds of undue delay and unfair prejudice. “Under Ninth Circuit law, a substantial delay on the part of the moving party [in seeking amendment], while not dispositive, is relevant” to the Rule 15 inquiry. Climax Portable Mach. Tools, Inc. v. Trawema GmbH, Case No. 3:18-cv-01825-AC, 2021 WL 1396625, at *6 (D. Or. Mar. 22, 2021). “Relevant to evaluating the delay issue is whether the moving party knew or should have known the facts and theories raised by the amendment in the original pleading.” Id. (citing Lockheed Martin Corp. v. Network Sols. Inc., 194 F.3d 980, 986 (9th Cir. 1999)).
Salu acknowledges that he was aware of the “full extent” of his proposed claims by December 2022; however, he did not move for leave to amend his complaint until May 22, 2023-five months after those claims allegedly arose and nearly two months after the discovery deadline closed on March 31, 2023. Salu does not provide an adequate explanation for that delay. At the telephonic conference held to discuss this motion on June 14, 2023, Mr. Steffen argued that the delay in filing the formal motion should be attributed to the County because Ms. Bannon Moore took six months to respond to his February 8, 2023 email providing notice of Salu's intent to seek amendment. The court is unpersuaded by that argument. There is no indication that Ms. Bannon Moore's untimely response was made in bad faith, nor that that communication channels between the parties were closed such that Mr. Steffen could not follow up on his February email before the discovery deadline passed. And as the party seeking leave to amend, Salu bore the responsibility of ensuring that his motion was brought in a timely manner. Though not dispositive, Salu's delay in moving to amend weighs against granting his motion. See Miller v. United Parcel Serv., Inc. Case No. 3:14-cv-872-PK, 2016 WL 8710006, at *2 (D. Or. May 13, 2016) (denying motion to amend for undue delay based on plaintiffs “long, unexplained, and unjustified delay” in seeking amendment).
The court also finds that allowing amendment at this stage would unfairly prejudice the County. Unfair prejudice to the opposing party is a relevant factor that carries significant weight in the Rule 15 inquiry. Eminence, 316 F.3d at 1052. “A need to reopen discovery, a delay in the proceedings, or the addition of complaints or parties are indicative of prejudice.” Zivkovik v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002).
To support his motion to amend, Salu offers the cursory assertion that the County “will not be prejudiced” by the new claims. (See Pl.'s Mot. Am. at 2.) The court is not convinced. Although no trial date has been set, the parties acknowledge that Salu's proposed amendment would likely require the court to reopen discovery and extend the dispositive motion deadline, which is set for July 31, 2023. Given those delays, the potential prejudice to the County weighs strongly against amendment. See Thomsen, 2021 WL 6775438, at *3 (denying leave to amend where amendments “would likely require the court to reopen discovery and therefore delay the proceedings”); Zivkovik, 302 F.3d at 1087 (affirming district court's denial of motion to amend pleadings filed five days before close of discovery where additional causes of action would have required additional discovery, thus prejudicing the defendant and delaying proceedings).
Accordingly, the court recommends denying Salu's motion to amend on grounds of undue delay and unfair prejudice.
CONCLUSION
For the above reasons, Salu's motion to amend (ECF No. 30) should be DENIED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a District Judge. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.