Garrido v. Beall Corporation

Filing 12

ORDER: Denying Defendant's Motion to Dismiss 3 is denied. Signed on 12/6/10 by Chief Judge Ann L. Aiken. (lae)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

J U L I O GARRIDO, Plaintiff, vs. BEALL CORPORATION, dba BEALL TRAILERS OF OREGON, INC., Defendant. Daniel Snyder Erin McCool Law Offices of Daniel Snyder 1000 S.W. Broadway, Suite 2400 Portland, Oregon 97205 Attorneys for plaintiff Wayne D. Landsverk Miller Nash LLP 3400 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, Oregon 97204-3699 Attorney for defendant

Civil No. 10-845-AA OPINION AND ORDER

Page 1 - O P I N I O N AND ORDER

AIKEN, Chief Judge: aintiff's action against his PIa iff's cIa int alleges an employment rmer employer, lude a vio scrimination

fendant Beall Corporation. ion of worker's compensation (state

scrimination laws, and federal), litation Act, wrongful t

ly Medical Leave Act violations

cans with Dis

lities Act (ADA), Oregon (ADEA),

Discrimination in Employment Act ion.

Defendant filed a motion to dismiss Defendant's motion is denied.

st plaintiff's Complaint.

Under Fed. R. Civ. P. 12 (b) (6), once a cl

has been stat

adequately, it may be supported by "showing any set of facts consistent with allegations the compla
II

Bell Atlantic Litchfield The compl

Corp. v. Twombly, 550 U.S. 544, 555 (2007). v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984). must allege, that is plaus purpose of t construed in taken as true. 1983) . ,"".,0170r,
H

enough

s to state a claim to relief Twombly, 550 U.S. at 570. smiss, the complaint is 1 iffs, and its allegations are 719 F.2d 1422, 1424 (9th For lly

e on its face." motion to of the pIa

r.

In s

of its mot

to dismiss,

fendant submitt

the

affidavit of James Olson,

Vice President/General Manager of

Page 2 - O P I N I O N AND ORDER

1 Trailers.

In general, a pl

s

ict court "may not consi

r

material beyond ss. ing

" when ruling on a motion to 622 (9th r. 1998)

Cooper v. Pickett, 137 F.3d 616, 14 F.3d 449,

453

(9th Cir. 1994)). cifically icity exhibits in ib
I,

However, a district court

consider documents

referenced in the complain~, assuming the .documents' is not contested. to Olson's affidavit his complaint. Those y, I consider only t

plaintiff specifically re ts include the following: agreement; exhibit 2, the t

collective barga letter from Olson to pla form; and exhibit 4, his grievance. The rema

nation

iff; exhibit 3, plaintiff's grievance letter from Olson to pl iff regarding

r of the exhibits are not plaintiff's Complaint , therefore,

specifically refe will not be cons i d e

Defendant moves to dismiss plaintiff's Act (FMLA) claim (c

ly Medical Leave

two) and Oregon Family Leave Act (OFLA)

claim (claim three) . Defendant must fail because bargaining agreement defendant rei determination s on p that plaintiff's FMLA was properly laid off under (CBA). OFLA claims s collective

In support of its argument, union's late the CBA.

son's affidavit, citing intiff's layoff did not

Page 3 - O P I N I O N AND ORDER

However, the union's dete re s renced in plaintiff's of the pleadings.

ion was never specifically aint and there re outside the

Moreover, plaintiff's allegations are s a FMLA and an OFLA c im. Specifically,

ficient to support intiff alleged s employer, and

he took FMLA/OFLA leave from defendant,

that defendant failed to return plaintiff to employment when his ended. Complaint, p. 6. Consequently, ssing

iff's FMLA and OFLA ADA (Fourth Claim)

aims is inappropriate at this time.

& Oregon Rehabilitation Act (Fifth Claim) i a
IS

Defendant also moves to dismiss pla ) and Oregon Rehabilitation Act claim De uf does not a cient, but a s

ADA claim (claim
f ).

that plaintiff's alle stead that the CBA

ions are cludes s on U.S. Airways involved a ss and is 's assertion

aintiff's claims.

n support, defendant rel However,

v. Barnett, 535 U.S. 391 (2002). motion for summary j
t t

, not a motion to See id. Thus, de

fore distingui plaintiff was

off pursuant to ss.

CBA is insufficient

to grant a motion to ADEA ( S i x t h Claim)

Defendant also moves to dismiss plaintiff's ADEA claim (claim six). pl Simi r to defendant's regarding plaintiff's

a

fendant does not

4 - OPINION AND ORDER

allegations are insuffic court should look beyond p layoffs that occurred relies on Olson's affi younger than p
t

Instead( defendant argues that the iff's Complaint and consider other iff was po s to id off. Defendant employees

twenty~four

iff who were

off to support its argument. an exhibit that plaintiff did

However, this evidence comes not specifically re will not consider se

his Comp r employees.

int, and therefore, Additionally,

I

defendant's argument ignores plaintiff's allegation that his name was included with layoff. See
IS.

r

"

r guys" on a list of workers to at
~

a
ars

19.

Based on this

contradiction, it determine whether for plaintiff.

is asking this court to

re is currently sufficient evidence to

Such a weighing of evidence while appropriate ra

a motion for summary judgment, is wholly inappropriate motion to
~

ss.

, defendant's motion is denied.

Workers' Compensation Discrimination (First Claim) De next moves to dismiss plaintiff's workers' (c im one), arguing that plaintiff's
1

compensat for workers' layoff decis Mot. to corre

at i o n "had absolutely no correlation with

"

Def. 's Mem. in Suppt. of Def. Beall Corp's. Defendant further argues that no Ie

ss, p. 8. ion can

st because defendant has retained mult recently filed for workers' ion

employees who

Page 5 - OPINION AND ORDER

discrimination.

Again, defendant's argument relies on facts

outside of the pleadings, which will not be considered. Plaintiff sufficiently states a claim for workers' compensation discrimination by alleging that defendant discriminated against him for utilizing the workers' compensation system.
p.
~

Complaint,

7.

Accordingly, defendant's motion is denied.

Wrongful Termination (Seventh Claim) Defendant moves to dismiss plaintiff's wrongful termination

claim (claim seven) .

Defendant argues that dismissal is First, defendant

appropriate for two independent reasons.

alleges it never discharged plaintiff and that there was nothing wrongful about plaintiff's layoff. Second, defendant maintains

that even if plaintiff was wrongfully terminated, an adequate statutory remedy exists. Plaintiff adequately states a claim for wrongful termination by alleging: 1) defendant terminated plaintiff's employment via his termination letter and 2) that defendant terminated plaintiff because he pursued FMLA/OFLA leave or workers' compensation, or because of his age or disability. Defendant argues that the

termination cannot be wrongful because it was pursuant to the CBA, and that the National Labor Relations Board ("NLRB") agreed. However, as stated repeatedly throughout this order, I cannot

consider evidence outside the pleadings or specifically referenced in them. Because the NLRB's decision is not

Page 6 - O P I N I O N AND ORDER

speci

cally referenced in

eadings, I will not consider it.

Further, defendant has not met its burden of proving that an e statutory remedy that plaintiff's ot fendant makes a re de by plaintiff appears to a makes it adequate. sts. Rather than c ing case law

claims provide an adequate ory statement adequate remedy. the statutes In other words, a statutory ity for this

that the mere existence Defendant cites no

assertion, while plaintiff provides case law demonstrating that FMLA, OFLA, and ADA c statutory U.S. de st.
L~XIS

do not automati

ly provide an 2005 Accordingly,

42165 (D. Or. Apr. 26, 2005).
i

's motion is Inconsistent Claims nally, defendant se he alleges "

that pIa istent and i

iff's Complaint fails lable claims."

Def. 's Reply Mem., p. 5.

However, the Federal Rules of Civil inconsistent c r, none of the cases

explicitly allow a party to rna Rules of Civ. Pro. 8 (d) (3) .

fendant cites in support involve a motion to dismiss.
~=-~==~~~~~~~-=~~,

129 S. Ct. 2343

(2009)

(involving

challenge to jury 591 F.3d 957 Cir. 2009) (invo

tructions) ; (same); Fairley v. Andrews, motion for summa 578 F.3d 518 (7th Accordi

judgment).

7 - O P I N I O N AND ORDER

t

that pia

i

may have pled

istent c

does

not warrant dismissal. CONCLUSION Defendant's motion to dismiss IT IS SO ORDERED. Dated ( . 3) is DENIED.

s

~

d a y of

r

2010.

Ann Aiken United States District

8 - O P I N I O N AND ORDER