Opinion
3:21-cv-00922-AC
02-14-2022
MO LEE TAYLOR, Plaintiff, v. SCHWAN'S CONSUMER BRANDS, INC., Defendant.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE
Introduction Plaintiff Mo Lee Taylor ("Taylor") filed this action against his former employer, Defendant Schwan's Consumer Brands, Inc. ("Schwan's"). Taylor claims he was discriminated against based on his alleged disability of a stroke and the potential consequences thereof. Taylor brings three claims: (1) disability discrimination pursuant to Oregon Revised Statutes ("O.R.S.") § 659A.112; (2) failure to engage in a meaningful interactive process and failure to provide reasonable accommodation pursuant to O.R.S. § 659A.118; and (3) retaliation for invoking the right to medical leave under Oregon Family Leave Act ("OFLA") and deprivation of equal employment opportunities pursuant to O.R.S. §659A.183. Currently before the court is Schwan's Motion to Dismiss Plaintiffs First Amended Complaint, or in the Alternative, Make More Definite and Certain, or in the Alternative, Strike ("Motion"). The court recommends that Schwan's Motion be DENIED.
Background
Schwan's employed Taylor beginning on November 17, 2001 as a Material Handler 2. (First Am. Compl. ¶ 4.) In the years that followed, Schwan's promoted Taylor to Material Handler 3, Facilities Supervisor, and Facility Manager. (Id. at ¶ 5.) During work hours on or around March 15, 2020, Taylor suffered a stroke. (Id. at 5.) He was subsequently admitted to the hospital, discharged the following day, and immediately began medical leave. (Id. at 5.)
Taylor's primary physician released him to return to work on March 30, 2020, with three restrictions: (1) lifting more than ten pounds; (2) four-to-six hours maximum of work per day; and (3) no driving Class A or Class B vehicles. (Id. ¶ 7.) The last restriction is mandated by Oregon law, which provides that commercial driver's licenses be deactivated for one year following a stroke. (Id. ¶ 13.) Taylor's wife ("Ms. Taylor"), taking into account Taylor's Sunday-through-Thursday work schedule, informed Laurie Laleman ("Laleman"), the Senior IDLM Specialist at Schwan's, by email that Taylor's physician had cleared him to return to work on Sunday, March 29. (Id. ¶ 8.) Laleman responded that Taylor's physician had not released him to work until March 30, 2020, and stated that she sent the restrictions to Taylor's managers, Gary Black ("Black"), Rob Yeager ("Yeager"), and Ken Zapko ("Zapko") to determine if they could fulfill the requested accommodations. (Id.) Ms. Taylor followed up with an explanation that Taylor's physician set the date based on a Monday-through-Friday workweek, rather than Taylor's Sunday-through-Thursday workweek, noting the physician "specifically referred to [Taylor] transitioning these next two workweeks." (Id.)
In the weeks that followed, Taylor and Ms. Taylor communicated with Laleman on multiple occasions regarding Taylor's progress and his desire to return to work immediately. (Id. ¶ 9.) Taylor also contacted Zapko, Black, and Yeager repeatedly to discuss returning to work, but did not receive return calls. (Id. ¶ 10.)
In mid-April, Taylor no longer was restricted in the number of hours he could work. (Id. ¶10.) On or around May 5, 2020, Taylor's neurologist released him to monthly evaluations with his primary physician. (Id. ¶ 6.) On May 8, 2020, Laleman scheduled a conference call with Zapko, Black, Yeager, and Taylor. (Id. at 9.)
During the conference call, Taylor proposed the accommodation that Schwan's hire a third-party trucking company to move the trucks at the end of each day. (Id. at ¶ 11; Taylor's Resp. 4.) Laleman and Zapko responded to this request during the call, stating Schwan's could not make this accommodation. (First Am. Compl. ¶ 11.) Taylor noted that Schwan's had done so during his absence, and that all other depots had another person on-hand to help. (Id. ¶11.) Zapko responded that Taylor should not compare the depot where he worked to others. (Id.)
The depot where Taylor worked is a third-party union facility governed by union regulations. (Id. ¶ 12.) Taylor was the only Schwan's employee in Operations at that depot; all others who worked at that location were union members employed by another company. (Id.) Taylor was not permitted to perform any work governed by the union contract. (Id.)
Taylor continued physical and occupational therapy through the end of July 2020 and completed his last evaluation with his primary physician on or around September 11, 2020. (Id. ]f 13.) At that time, Taylor's physician considered him fully recovered except for his CDL license restriction imposed by Oregon State Law. (Id.)
On or around September 20, 2020, Laleman sent Taylor an email informing him that his leave had been extended to March 15, 2021, at which time he would have thirty days to find a position with Schwan's. (Id. ¶ 14.) Four days before that date, on or around March 11, 2021, Laleman called Taylor and asked if he was ready to return to work. (Id. ¶ 15.) Surprised by the phone call and bearing in mind his CDL was not yet active because it had not been one year since the date of his stroke, Taylor answered that he was not. (Id.) No specific positions or offers of assistance were mentioned during the phone call. (Id.)
Through his attorney, Taylor attempted to convey to Schwan's that he was interested in returning to work and wanted assistance finding a position. (Id. ¶ 16.) Schwan's informed Taylor his employment had been terminated on March 11, 2021, "because Taylor stated he was not ready to return to work." (Id.)
Legal Standard
Under Rule 12(b)(6), a party may move to dismiss a complaint for "failure to state a claim which relief can be granted." FED. R. ClV. P 12(b)(6) (2020). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Teixeira v. Cnty. of Alameda, 873 F.3d 670, 678 (9th Cir. 2017). The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 556. When a plaintiffs complaint pleads facts that are "merely consistent with" a defendant's liability, the plaintiffs complaint "stops short of the line between possibility and plausibility of 'entitlement to relief" Id. at 557 (alterations omitted).
The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152, 1156-57 (9th Cir. 2017). The pleading standard under Rule 8 "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009).
Discussion
I. Disability Discrimination, Disparate Treatment
Taylor alleges Schwan's discriminated against him because of his disability and/or Schwan's perception of his disability, violating the ADA and O.R.S. § 659A.112. (First Am. Compl. (Scott Deck Ex. 4), ECF No. 2-4, ¶ 21.) Schwan's argues Taylor's federal and state disability claims fail to state a claim upon which relief can be granted because Taylor has not pleaded sufficient facts to establish he has a disability, is a qualified individual, or was terminated because of his disability. (Def.s Mot. Dismiss at 4-8.)
The statute makes an unlawful employment practice an employer's refusal to hire or promote, to bar or discharge from employment, or to discriminate in the terms, conditions, or privileges of employment on the basis of an otherwise qualified person's disability. Or. Rev. Stat. § 659A.112. "The standard for establishing a prima facie case of discrimination under Oregon law is identical to that used in federal law." Snead v. Metro Prol & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001); Shepardv. City of Portland, 829 F.Supp.2d 940, 963 (D. Or. 2011); Or. Rev. Stat. § 659A.139 (providing that Oregon disability statutes "shall be construed to the extent possible in a manner that is consistent with any similar provisions of the federal Americans with Disabilities Act" ("ADA")).
The ADA provides, in relevant part, that "[n]o covered entity shall discriminate against a qualified individual with a disability because of a disability." 42 U.S.C. § 12212(a). A "covered entity" is an "employer, employment agency, labor organization, or joint labor-management committee." 42 U.S.C. § 1211(2). To state an ADA claim for unlawful termination, a plaintiff must allege: "(1) he is a disabled person within the meaning of the statute; (2) he is a qualified individual with a disability; and (3) he suffered an adverse employment action because of his disability." Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999).
A. Disabled Person Under the ADA
The ADA defines "disability" as a physical or mental impairment that substantially limits one or more major life activities . . . a record of such an impairment... or being regarded as having such an impairment." 42 U.S.C. §§ 12102(1)(A)-(C). Major life activities include "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting .. . and working." 42 U.S.C. § 12102(2)(A). The definition of "disability" under the ADA should be "construed in favor of broad coverage of individuals." 42 U.S.C. § 12102(4)(A). Or. Admin. R. 839-006-0205(6)(w) expands on working with "to be substantially limited in the major life activity of working, an individual must be significantly restricted in the ability to perform a class of jobs, or a broad range of jobs in various classes as compared with the ability of an average person with comparable skill, experience, education or other job-related requirements needed to perform those same positions." Or. Admin. R. 839-006-0205(6)(ee) also lists "transportation."
Schwan's asserts "[f]here is no such thing as a 'per se' disability and courts may not assume a condition substantially limits a major life activity." (Def's Mot. Dismiss at 5, ECF No. 6 (citing 29 C.F.R. § 1630.2(j)(1)(ii) ).) This assertion is followed by an explanation that "transitory and minor" impairments with '"an actual or expected duration of six months or less' are not considered disabilities under the 'regarded as' definition of disability" under 42 U.S.C. § 12102(3)(B). (Def.s Mot. Dismiss at 5.) As support for this, Schwan's cites Willis v. Noble Environmental Power, LLC, 143 F.Supp.3d 475 (N-D. Tex. 2015), explaining the court found a "stroke [was] considered transitory and minor." Willis, 143 F.Supp.3d 475. Next, Schwan's relies upon Feldman v. Law Enf. Associates Corp., 955 F.Supp.2d 528, 538 (E.D. N.C. 2013), explaining the court determined "an employee who may have suffered a transient ischemic attack ("TIA") was not a disabled individual because TIA did not impair any major life activity." (Def's Mot. Dismiss at 5.) Finally, Schwan's directs the court to Clarke v. Mortg. Lenders of Am., LLC, No. 14-2526-JWL, 2016 WL 1030039 (D. Kan. Mar. 10, 2016), explaining the court "dismissed the claim, because [Clarke] offered no evidence how he was substantially limited 'as compared to most people in the general population.'" (Def.s Mot. Dismiss at 4) (quoting Clarke, 2016 WL 1030039, at *5).
That section provides: "An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section." 29 C.F.R. § 1630.2 (j)(1)(ii).
Taylor responds by contending Taylor fits each of the three definitions of "a disabled person" under Oregon law "as a person who: 1) 'has a physical or mental impairment which substantially limits one or more major life activities;' 2) 'has a record of such an impairment;' or, 3) 'is regarded as having such an impairment.'" (PL's Resp. at 3, ECF No. 9.) (quoting OR. ADMIN. R. 839-006-0205(1)).
In its reply, Schwan's highlights the discrepancy between the allegations in Taylor's Complaint and arguments in the Response: the former alleges Taylor could not drive Class A or Class B vehicles, and the latter alleges Taylor was not permitted to engage in the major life activity of transportation because he was restricted from "operating a vehicle." (Def.'s Reply at 3, ECF No. 10.) Schwan's also quotes EEOC guidance stating '"Demonstrating a substantial limitation in performing the unique aspects of a single specific job is not sufficient to establish that a person is substantially limited in the major life activity of working.'" (Def.'s Reply at 4) (quoting U.S. Equal Employment Opportunity Commission, Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008, at no. 21 (2011), https://www.eeoc.gov/laws/guidance/questions-and-answers-final-rule-implementing-ada-amendments-act-2008). Further, Schwan's contends driving is not a major life activity, citing Kellogg v. Energy Safety Servs. Inc., 544 F.3d 1121 (10th Cir. 2008), and therefore Taylor does not qualify as disabled. (Def.'s Reply at 4.) The court is not convinced.
First, 29 C.F.R. § 1630(j)(1)(ii) is to be construed in conjunction with the instruction contained in subsection (i): '"substantially limits' shall be construed broadly in favor of expansive coverage" and that the standard "is not meant to be a demanding" one. Second, though Schwan's is correct that "transitory and minor" impairments are not regarded as disabilities under 42 U.S.C. § 12102(3)(B), Willis does not hold that strokes categorically fit that classification. In fact, Willis does not discuss strokes at all. Instead, Willis "suffered a medical episode related to dehydration and possible heat stroke" which Willis admitted was not a disability. Willis, 143 F.Supp.3d 475, 477. In Willis, the court granted summary judgment because Willis did not provide evidence to support impairment. The court considered Willis' condition transitory and minor because "the effects lasted only a few hours." Id. at 484. As a factual matter, a person's morbidity after a stroke is distinct from the health of a person following dehydration or a heat stroke, even more so a "possible heat stroke." Oregon's law requiring invalidation of a CDL for one year following a stroke is indicative of the potential severity of the medical emergency of a stroke. Third, in the other cases which Schwan's relies, Feldman and Clarke, the courts considered motions for summary judgment, not motions to dismiss as the court considers here.
In Feldman, summary judgment was granted because the record showed all of the diagnostic testing following Feldman's alleged transient ischemic attack ("TIA") was normal, he had no restrictions upon discharge from the hospital, and his primary care physician did not impose any restrictions during his subsequent appointment. Feldman, 955 F.Supp.2d 528, 539. Feldman failed to provide any evidence at all to show TIA substantially limited him. Id. At the motion to dismiss stage, Taylor need not produce evidence, as the Feldman plaintiff was required to do under the summary judgment standard. Similarly, in Clarke, the court granted summary judgment because Clarke's "broad, bare assertion" failed to meet the evidentiary requirement to survive summary judgment. Clarke, 2016 WL 1030039, at *3-4.
The cases are clear that a long-term impairment, including one that ultimately will resolve, may qualify as a disability.
B. Qualified Individual With a Disability
Taylor must next plausibly allege he is a "qualified individual" with a disability under the ADA. A "qualified individual" is an individual who: (1) satisfies the requisite skill, experience, education and other job-related requirements of the position and (2) can perform the essential functions of the employment position with or without an accommodation. 42 U.S.C. § 1211(8). The "essential functions" of a job are "the fundamental job duties of the employment position." 29 C.F.R. § 1630.2(n). A plaintiff is not required to plead the "essential functions" of his job to withstand a motion to dismiss, however. See Wessels v. Moore Excavation, Inc. Case No. 03:14-CV-01329-HZ, 2014 WL 6750350, at *4 (D. Or. Dec. 1, 2014) (noting that the "[relevant cases suggest that dismissal is appropriate when the plaintiff alleges only that he or she is a 'qualified individual'" without alleging that the plaintiff could perform the essential functions of the job with or without an accommodation); see also Blackburn v. Tr. 's of Guilford Tech. Cmty. Coll., 822 F.Supp.2d 539, 551 (M.D. N.C. 2011) (rejecting the employer's argument that the plaintiff must plead the "essential functions" of her job to survive a motion to dismiss).
Schwan's argues Taylor's Complaint does not "make any factual allegations" to establish he is a qualified individual. (Def.'s Mot. Dismiss at 6.) Distinguishing this case from Barrier v. The Dalles, Case No. 3:18-cv-1084-AC, 2019 WL 2707519, at *3 (D. Or. June 4, 2019), Schwan's contends Taylor's Complaint is insufficient because he "failed to specifically allege the ability to perform the essential functions of his job either with or without accommodation." (Def.'s Mot. Dismiss at 7.) Schwan's emphasizes the "increased pleading burden on plaintiffs that was enunciated in Twombly, which "requires more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." (Def.'s Mot. Dismiss at 3) (quoting Williamson v. Munsen Paving LLC, No. CV 09-736-AC, 2010 WL 1063575, *2 (D. Or. 2010)).
In Williamson, this court went on to reiterate the Twombly-Iqbal standard articulated by the Ninth Circuit in Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009): "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inference from that content must be plausibly suggestive of a claim entitling the plaintiff to relief." Williamson, 2010 WL 1063575, *2 (quoting Moss, 572 F.3d at 969).
In response, Taylor contends his complaint adequately alleges essential functions of his job. (PL's Resp., at 4) (citing First Am. Compl. ¶ 10 ("At the time, Plaintiff s job duties were approximately ninety-five percent office-related and five percent driving [.].")). Taylor also attests that he pleaded he requested reasonable accommodation to move the trucks when required, and that he would be able to perform all of his job duties and return to work if Schwan's would have provided reasonable accommodations for the driving duties. (PL's Resp. at 4) (citing First. Am. Compl. ¶ 11).
The court agrees. Taylor sufficiently alleges his physician released him to work with restrictions fifteen days after his stroke (¶ 7), his duties were primarily office-related (¶ 10), and that he was "ready, able, and willing to return to work" (¶ 13). The factual matter of whether the ability to drive Class A and Class B vehicles is "an essential function" of the job need not be pleaded at the motion to dismiss stage.
C. Adverse Employment Action Because of His Disability
Schwan's argues that "there is no factual allegation establishing that anyone with Defendant knew that Plaintiff was disabled." (Def. 's Reply at 3.) The court disagrees. Though Taylor does not list the Schwan's employees who knew Taylor had suffered a stroke, the factual allegations Taylor provides sufficiently convey Schwan's knew or should have known that Taylor was disabled.
Taylor alleges his stroke occurred at work, both he and his wife corresponded by email with Senior IDLM Specialist Laleman, Taylor contacted his managers Zapko, Black, and Yeager that he met with his managers and Laleman by conference call to discuss accommodations. (First Am. Compl. ¶¶5, 8, 9, 11.) During that call, Taylor suggested an accommodation. (First Am. Compl. ¶11.) Laleman informed Taylor he was placed on extended leave of absence, set to end one year from the date of his stroke presumably because his CDL would again be valid at that time. (First Am. Compl. ¶ 14.) When Taylor told Schwan's he was not ready to come back to work four days before he would be legally permitted to drive commercial vehicles, he was fired. (First Am. Compl. ¶¶ 15-16.)
Termination may "constitut[e] an adverse employment action because such conduct effect[s] 'hiring, tenure, or other terms and conditions of employment.'" Barrier, 2019 WL 2707519, at *4 (quoting Davis v. Tri-Cnty. Metro. Tramp. Dist, 45 F.Supp.3d 1222, 1240 (2014)). Therefore, Taylor has plausibly alleged his termination was due to his disability. In short, Schwan's motion to dismiss Plaintiffs first claim should be denied.
II. Failure to Engage in a Meaningful Interactive Process and Failure to Provide Reasonable Accommodation
Taylor's second claim for relief alleges Schwan's discriminated against him because of his disability, in violation of O.R.S.. § 659A. 118 in three ways: (1) by failing to engage in a meaningful interactive process with him regarding the accommodation of his disability, (2) by failing to provide him with reasonable accommodations, and (3) by ultimately terminating his employment.
Schwan's argues that Taylor's Complaint establishes "a significant interactive process" and that Schwan's satisfied its obligation to conduct an interactive process by granting Taylor an extended leave of absence. (Compl. ¶ 9.)
In response, Taylor points to Humphrey v. Memorial Hosp. Ass 'n, 239 F.3d 1128, 1138 (9th Cir. 2001), where the Ninth Circuit explained that the EEOC Enforcement and guidance rule instructs employers to consider whether alternative reasonable accommodations exist "fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to seek to find accommodations that really work." Humphrey, 239 F.3d at 1138.
Although Schwan's appears to have provided Taylor a leave of absence scheduled to end on March 15, 2021, Taylor alleges he was expecting to be reinstated and Schwan's failed to engage in the interactive process after the call with Laleman on March 11, 2021. The court finds Taylor has adequately alleged that Schwan's failed to engage in the interactive process. Schwan's motion to dismiss on this basis should be denied.
III. Retaliation for Invoking Right to Medical Leave under OFLA and Deprivation of Equal Employment Opportunities under O.R.S. § 659A.183
Taylor's third claim for relief alleges Schwan's retaliated against him for invoking his right to medical leave, by refusing to return him to work when his physician said that he was able to do so, and subsequently terminating his employment, violating O.R.S.§ 659A.183.
Schwan's argues Taylor's OFLA claim fails because Taylor did not allege facts establishing he worked twenty-five or more hours per week on average, and thus was not an eligible employee. (Def. 's Mot. Dismiss at 12.) Though it is unclear from the briefing, Schwan's also appears to argue that even if Taylor was eligible, his claim fails because he did not inquire about or submit a request for family leave or any provision of O.R.S. §§ 659A.150 to 659A.186. (Id.) Schwan's also contends Taylor failed to establish a causal connection between his OFLA leave and an adverse action, noting the length of time between Taylor's OFLA exhaustion and his termination. (Id. 12-13.) For support, Schwan's cites Smith v. Guard Publishing, 155 Or.App. 481 (1998), rev den., 328 Or.App. 115 (1998), for the court's determination that employees who "remain unable to return to work after [twelve] weeks because they cannot perform an essential element of their former jobs ... have no right to reinstatement in another position." Schwan's also cites caselaw to support the contention that Taylor cannot establish causation because his OFLA leave ended after twelve weeks, on or around June 4, 2020, and his termination took place in March of 2021-nine months later. (Def.s Mot. Dismiss at 13.)
Taylor responds by reiterating the elements of a retaliation claim and by asserting Schwan's conduct was retaliatory in multiple instances. (PL's Resp. at 7-8.) Taylor points to the allegations in his Complaint: Schwan's retaliated against Taylor for invoking his right to medical leave by refusing to return Taylor to work once his physician cleared him to do so on March 30, 2020, Schwan's refused to provide Taylor's requested reasonable accommodation, and that these actions violated Taylor's rights under OFLA. (PL's Resp. at 7-8.)
In Smith, an employee left work, reported his illness to his workplace, was placed on retroactive leave. Smith, 155 Or.App. at 483. After eight weeks, the employee's physician found him to be "totally disabled." Id. When his twelve weeks of FMLA leave were finished, his employer decided to terminate him. Id. The trial court granted summary judgment and the Oregon Court of Appeals affirmed. Id.
Smith is distinct from the case at hand because Smith was resolved on summary judgment, whereas here this court applies the motion to dismiss standard to determine only whether the pleading is adequate, and because although it extended Taylor's twelve-week leave, Schwan's allegedly failed to engage in the interactive process to determine whether he could return to work. (First Am. Compl. 3-5.) The cases Schwan's cites to support its argument all applied the summary judgment standard. (Def.'s Dismiss at 12-14.) To survive this motion to dismiss, Taylor need only allege a plausible OFLA retaliation claim. Taylor has plausibly alleged that his employment was terminated in retaliation for invoking rights under OFLA. Because the court must presume the truth of these facts at this early pleading stage, the court recommends that Schwan's motion on this basis be denied.
Schwan's cites Price v. Multnomah Co., 132 F.Supp.2d 1290, 1296 (D. Or. 2001) to support the contention Taylor "must establish a causal connection between his OFLA leave and some adverse action" (Motion 12), but that requirement applies to a motion for summary judgment, not a motion to dismiss. Similarly, Smith v. Guard Publishing, 155 Or.App. 481 (1998), rev. den., 328 Or. 115 (1998), which Schwan's also cites, involved a summary judgment motion.
IV. Motion to Make More Definite and Certain
Rule 12(e) provides that "[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." However, "[m]otions for a more definite statement are viewed with disfavor and are rarely granted." Williamson v. Munsen Paving, LLC, No. CIV. 09-736-AC, 2009 WL 4505443, at *3 (D. Or. Nov. 30, 2009) (quoting Margarita Cellars v. Pacific Coast Packaging Inc., 189 F.R.D. 575, 578 (N.D. Cal. 1999). "Rule 12(e) motions attack the intelligibility of the complaint, not the lack of detail, and are properly denied where the complaint notifies the defendant of the substance of the claims asserted." Williamson, 2009 WL 4505443, at *3 (quoting Presidio Group, LLC v. GMAC Mortg, LLC, Case No. 08-5298 RBL, 2008 WL 3992765 (W.D. Wash. Aug. 25. 2008)). A Rule 12(e) motion must be evaluated in the context of Rule 8's requirements that a pleading need contain only a short and plain statement of the claim under Rule 8. United States v. Aquatherm GmbH, No. 3:21-CV-335-JR, 2021 WL 3282984, at *2 (D. Or. July 13, 2021) (citing Prychyna v. Barrent Bus. Servs.Jnc, No. CV 11-122-HZ, 2011 WL 4498843 (D. Or. Sept. 27, 2011). The main purpose of the complaint is to "give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." United States v. Aquatherm GmbH, No. 3:21-CV-335-JR. 2021 WL 328984, at *2 (quoting Lehman v. Nelson, 862 F.3d 1203, 1211 (9th Cir. 2017). The proper test is to determine "whether the complaint provides the defendant with a sufficient basis to frame his responsive pleadings." Williamson, 2009 WL 4505443, at *3
Schwan's contends that Taylor has pleaded several vague and ambiguous statements to which it cannot respond unless additional detail is provided. Specifically, Schwan's requests Taylor specify: (1) the date, content, and form of the alleged discrimination; (2) the adverse action or actions causally connected to the protected status; (3) the essential functions of his job; and (4) the facts establishing that he could perform the essential functions of his job with or without an accommodation. Additionally, Schwan's asks that Taylor make more definite and certain the date, content, and form of his denied accommodation request and OFLA retaliation claim.
Schwan's Rule 12(e) motion is not well-taken. There is nothing so unintelligible in Taylor's Complaint that Schwan's cannot ascertain the nature of the claims being asserted. "Rule 12(e) designed to strike at unintelligibility, not want of detail, and there is nothing unintelligible in Plaintiffs Complaint." Martin v. City of Portland, Case No. 3:19-cv-1647-SI, 2020 WL 363391, at *7 (D. Or. Jan. 21, 2020). The detail that Schwan's seeks will be available in discovery. Accordingly, Schwan's motion under Rule 12(e) motion should be denied.
V. Motion to Strike
Federal Rule of Civil Procedure 12(f) provides a court may, on its own or on a motion, "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED. R. Civ. P. 12(f) (2019). '"Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded.'" Menchu v. Multnomah Cty. Health Dep't, No. 3:20-CV-00559-AC, 2021 WL 2450780, at *3 (D. Or. May 3, 2021) (citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993). "'Impertinent' matter consists of statements that do not pertain, and are not necessary, to the issues in question." Fantasy, 984 F.2d a 1527. The purpose of a Rule 12(f) motion is to avoid the costs that arise from litigating spurious issues by dispensing with those issues prior to trial. Bassiri v. Xerox Corp., 292 F.Supp.2d 1212, 1220 (CD. Cal. 2003), rev'd on other grounds, 463 F.3d 927 (9th Cir. 2006)
When ruling on a motion to strike, the court must accept the nonmoving parly's allegations as true and liberally construe the complaint in the light most favorable to the nonmoving party. See Stearns v. Select Comfort Retail Corp., 763 F.Supp.2d 1128, 1140 (N.D. Cal. 2010). Generally, "a motion to strike should be denied unless it can be shown that no evidence in support of the allegation would be admissible, or those issues could have no possible bearing on the issues in the litigation." Gay-Straight All. Nehvork v. Visalia Unified Sch. Dist., 262 F.Supp.2d 1088 1099 (E.D. Cal. 2001). "A motion to strike should not be granted unless the matter to be stricken clearly could have no possible bearing on the subject of the litigation ... if there is any doubt whether the portion to be stricken might bear on an issue in the litigation, the court should deny the motion." Menchu, 2021 WL 2450780, at *3 (quoting Platte Anchor Bolt, Inc. v. ML Inc., 352 F.Supp.2d 1048, 1057 (N.D. Cal. 2004). However, a motion to strike, "may be proper if it will make the trial less complicated or if the allegations being challenged are so unrelated to the plaintiffs claim as to be unworthy of any consideration as a defense and that their presence in the pleading will be prejudicial to the moving party." Id. (quoting Thornton v. Solutionone Cleaning Concepts, Inc. No. CIV F 06-1455 AWI SMS, 2007 WL 210586, at *1 (E.D. Cal. Jan. 26, 2007).
Schwan's argues paragraph 12 of Taylor's Complaint is replete with allegations that are "immaterial, impertinent, or scandalous," and otherwise are irrelevant to the elements of Taylor's claims. (Def.s Mot. Dismiss at 16.) Schwan's contends that striking all or part of these allegations will reduce confusion, consistent with Rule 12(f). (Def.'s Mot. Dismiss at 16.)
In response, Taylor contends that his paragraph 12 contains both material and pertinent information regarding case. (PL's Resp. at 14.) Taylor argues that paragraph 12 provides context about the location where Plaintiff worked, which relates to the type of work that Plaintiff performed at his place of employment versus that of his counterparts in other of Schwan's locations. (PL's Resp. at 9.) Further, Taylor argues that paragraph 12 does not incorporate repulsive language nor does the paragraph reflect negatively on the character of the individuals working at the location where Taylor worked. (PL's Resp. at 9.)
The court agrees with Taylor. Paragraph 12 of Taylor's complaint provides the location where Taylor worked and relevant information regarding the atmosphere of Taylor's workplace. The alleged information provides essential and important context for the claims for relief. Because paragraph 12 contains conceivably relevant background information for Taylor's claims, Schwan's motion to strike should be denied.
Conclusion
Schwan's motion to dismiss or alternatively make more definite and certain, or strike (ECF No. 6) should be denied.
Scheduling Order
The above Findings and Recommendation are referred, effective this date, to a United States District Judge for review. Objections, if any, are due no later than fourteen (14) days from this date. If no objections are filed, review of the Findings and Recommendation will go under advisement on that date. If objections are filed, any party may file a response within fourteen (14) days after the date the objections are filed. Review of the Findings and Recommendation will go under advisement when the response is due or filed, whichever date is earlier.