Stewart v. Rock Tenn

Filing 55

OPINION and ORDER - For the reasons stated, Rock Tenn's Motion to Dismiss 39 is GRANTED. Stewart's first, second, third, and eighth claims for relief are dismissed without prejudice; his fifth and ninth claims for relief are dismissed wi th prejudice; and his fourth, sixth, and seventh claims for relief remain live claims, as Defendants did not move to dismiss them. Moreover, Stewart's Motion for Leave to Amend 43 is denied, as the PAC fails to cure the deficiencies contained in Stewart's Second Amended Complaint. IT IS SO ORDERED. DATED this 24th day of April, 2015, by United States Magistrate Judge John V. Acosta. (see attached document - 22 pages) (peg)

UNITE D STATE S DISTR ICT COUR T
DISTR ICT OF OREG ON
PORTL AND DIVISION

Case No.: 3:13-cv -02147 -AC

TRAVI S PIERR E STEWART,

OPINIO N AND ORDE R

Plaintiff,

v.
ROCK TENN CP, LLC, aka ROCK TENN,
and ROCK -TENN SERVI CES, INC.,
aka ROCK TENN,
Defendants.

ACOST A, Magist rate Judge:

Introduction
Plainti ff Travis Pierre Stewar t ("Stew art"), a Washin gton resident, brings this

action against

Tenn") . Stewar t
defend ant Rock Tenn CP, LLC and Rock Tenn Services, Inc (collectively "Rock
VII"), 42 U.S.C. §§
alleges Rock Tenn violated Title VII of the Civil Rights Act of 1964 ("Title

Page 1 - OPINION AND ORDE R

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and
2000e through 2000e-17; the Civil Rights Act of 1866 ("CRA"), 42 U.S.C. § 1981; the Family
ties
Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601-2654; the Americans with Disabili
ent
Act of 1990 ("ADA"), 42 U.S.C. §§ 12101-12213; and Oregon state law prohibiting employm
's fees
discrimination. Stewart seeks declaratory, injunctive, and monetary relief, including attorney
and costs.
e
Rock Tenn moves to dismiss Stewart's first, second, third, and eighth claims for relief(th
because
"federal claims"). Rock Tenn argues the federal claims in the Complaint are untimely
of Right
Stewait failed to establish he commenced his action within 90 days of receiving a Notice
Tenn
to Sue from the Equal Employment Opportunity Commission ("EEOC"). Similarly, Rock
argues Stewart 's fifth and ninth claims (the "state claims") in the Second Amended Compla

int fail

days of
to state a claim because Stewart did not establish he commenced the action within 90
). Rock
receiving a Notice of Right to Sue from the Oregon Bureau of Labor and Industry ("BOLI"
Rock
Tenn does not move to dismiss Stewart 's fourth, sixth, and seventh claims. Stewart opposes
requests
Tenn's motion to dismiss and moves for leave to amend his complaint. In addition, Stewart
apply
that the court toll the commencement of the 90-day filing period for the federal claims and
federal procedural rules to preserve his state claims.
The court grants Rock Tenn's Motion to Dismiss because Stewart did not plead facts
sufficientto establish the timeliness of his claims or raise a colorable argument for tolling the

ninety-

prejudice
day filing deadline. Furthermore, the court denies Stewart 's motion to amend without
because the Proposed Supplemental and Third Amended Complaint ("PAC") fails to cure the

defects

in the Second Amended Complaint.

Page 2 - OPINION AND ORDER

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Background
Befor e his termin ation, Stewart, an Africa n-Am erican , worke
Comp!.~

d for Rock Tenn. (Seco nd Am.

shift super visor
9, Dkt. No. 32.) Starti ng on or about Decem ber 2011, Stewa rt's

allegedly

wheat " and "Radi o," a refere nce
referred to Stewa rt using racial slurs, includ ing callin g him "Buck
a movie. (Id.
to a devel opme ntally disabl ed Afric an-Am erican chara cter from

at~

11, 22.) Rock

for oppos ing his super visor' s racial
Tenn suspe nded Stewa rt in February and June 2012, allegedly
severe allergies. (Id. at~ 14, 27.) In
discri minat ion and for taking medic al leave to addre ss his
Septe mber 2012, Stewa rt alleges Rock Tenn discha rged him becau

se he is disabled, becau se he took

about Rock Tenn 's discri minat ory
protec ted medic al leave, and in retaliation for raisin g conce rns
practices. (Id.

at~

his discharge was
26.) Accor ding to Stewa rt, Rock Tenn stated the reason for

ed Rock Tenn with docum
exces sive absences. (Id.) In Septe mber 2012, Stewa rt provid

(Id.
his medic al leave but was not reinstated until Febru ary 2014.

at~

entati on of

28.)

BOU alleging discri minat ion
In respo nse, Stewa rt co-fil ed a comp laint with the EEOC and
and retaliation. (Id.

at~

the EEOC
7 .) Stewa rt claim s he receiv ed a Notic e of Right to Sue from

autho rizing him to file this action. (Id.

at~

8.) Stewa rt filed his original comp laint in federal court

rt, he filed the origin al comp laint
on Decem ber 6, 2013. (Comp!., Dkt. No. 1.) Accor ding to Stewa
within ninety days of receiv ing a Notic e of Right to Sue from

BOU . Id. On June 10, 2014, he filed

s to dismi ss in part. (Seco nd Am.
his Secon d Amen ded Comp laint, which Rock Tenn now move
Comp!.)

Legal Stand ard
I. Rule 12(b)(6) Motio n to Dismi ss
A well-p leaded comp laint must have a "sh01t and plain statem
Page 3 - OPIN ION AND ORDE R

ent of the claim showi ng that
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). A motio n pursuant to FRCP 12(b)(6)
the pleader is entitled to relief." FED. R. Civ. P. 8(a) (2014
insufficient to state a claim for relief. FED.
should be granted if the allegations in the complaint are
Twombly, 550 U.S. 544 (2007), the Cour t
R. C1v. P. 12(b)(6) (2014). In Bell v. Atlan tic Corp. v.
explained the necessity of including sufficient facts in the

pleading to give proper notice of the claim

l 2(b)(6) motio n to dismiss does not need
and its basis: "Whi le a complaint attacked by a Rule
de the 'grou nds' of his entitl emen t to
detailed factual allegations, a plain tiffs obligation to provi
relief requires more than labels and conclusions, and formu

laic recitation of the elements of a cause

this in mind , the Cour t noted "a wellof action will not do." Id at 555 (alteration omitted). With
judge that actual proof of those facts is
pleaded complaint may proceed even if it strikes a savvy
ely." ' Id at 556 (quoting Scheu er v.
improbable, and 'that a recovery is ve1y remote and unlik
Rhod es, 416 U.S. 232, 236 (1974)).
), the Cour t illuminated two
Later, in Ashc roft v. Iqbal, 556 U.S. 662, 678-679 (2009
propo sition that a comt must accep t all
principles underlying its decision in Twombly. First, the
t as true all legal conclusions set forth a
allegations in a comp laint does not force a court to accep
a plausible, not mere
pleading. Id at 678. Second, the complaint inust contain

ly possible, claim for

whet her a complaint states a plausible
relief. Id at 679. The court clarified that "[d]etermining
res the reviewing court to draw on its
claim for relief will ... be a context-specific task that requi
v. Hasty, 490 F.3d 143, 157-58 (2nd Cir.
judic ial experience and comm on sense." Id (citing Iqbal
usions can provi de the framework of a
2007)). Further, the court concluded, "[w]hile legal concl
s. When there are well-pleaded factual
complaint, they must be supported by factual allegation
allegations, a court shoul d assume their veracity and then

determine whether they plausibly give rise

to entitlement to relief." Id.
Page 4 - OPINION AND ORD ER

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must take as true all allegations
On a motio n to dismiss for failure to state a claim, the court
of material fact and construe them in the light more favor

able to the nonm oving party. Am. Family

(9th Cir. 2002). The court 's revie w is
Ass'n, Inc. v. City & Coun ty ofS.F , 277 F.3d 1114, 1120
nced in the complaint, and those matte rs
limited to the face of the complaint, any docum ents refere

v. KP MG LLP, 476 F.3d 756, 763 (9th Cir.
whic h the court may properly take judic ial notice. Swartz
not consider any mate rial outsi de the
2007). Otherwise, as a general rule, a district court may

Lee v. City ofL.A., 250 F.3d 668, 688 (9th
plead ings when ruling on a 12(b)(6) motio n to dismiss.
Cir. 2001).
II. Rule 15 Moti on to Ame nd
plain tiff may amen d his "plea ding
After amen ding a plead ing once as a matte r of course, a
only with the oppo sing party 's written conse nt or the court

's leave." FED. R. CIV. P. 15(a) (2013).

res." Id. "Alth ough the rule shoul d be
"The court shoul d freely give leave when justic e so requi
interpreted with 'extre me liberality,' leave to amen d shoul

d not be granted automatically." Jackson

ting UnitedStatesv. Webb, 655 F.2d 977,
v. Bank ofHaw., 902 F.2d 1385, 1387 (9th Cir. 1990 )(quo
if permitting amen dmen
979 (9th Cir. 1981 )). A trial court may deny the motio n
the oppo sing party, produce an undue delay in litigation,

t woul d preju dice

resul t in futility for lack of merit , is soug ht

plaintiffs have filed nume rous amen ded
by plaintiffs in bad faith or with a dilatory motive, or the

DCD Programs, Ltd. v. Leighton, 833 F.2d
complaints. Foman v. Davis, 371 U.S. 178, 182 (1962);
183, 186 (9th Cir. 1987).

weig ht" in
Prejudice to the oppo sing party carries the "grea test

deter minin g whet her to deny leave to amend, but futility

alone may justif y denying leave to amend.

(9th Cir. 2003). Whet her to grant leave
Eminence Capita/, LLCv . Aspeon, Inc., 316 F.3d 1048, 1052
. Webb, 655 F.2d at 979. In exerc ising
to amen d lies withi n the sound discretion of the trial court
Page 5 - OPINION AND ORD ER

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this discretion, however, the comt "mus t be guided by the

underlying purpose of Rule 15 to facilitate

icalities." Id.
decision on the merits, rather than on the pleadings or techn
Discussion
I. Moti on to Dismiss

for failure to state a claim. Rock
The court first considers Rock Tenn 's motion to dismiss
the timeliness requirement. Thus, in
Tenn argues the Complaint fails to establish Stewart met
whether the Complaint alleges sufficient
deciding the motion to dismiss, the court must determine
Stew art's pleadings.
facts that, when taken as true, establish the timeliness of
A motion to dismiss based on the timeliness of the complaint
running of the statute is apparent on the face of the comp laint.

may be granted "only when 'the

"' Von Sahe r v. Norton Simon Museum

also Supermai/ Cargo, Inc. v. U.S., 68
of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010); see
F .3d 1204 (9th Cir. 1995) ("a complaint cannot be dismissed

unless it appears beyond doubt that the

timeliness of the claim"). Additionally,
plain tiff can prove no set of facts that woul d establish the
such a motion can be granted only if the allegations in the

complaint could not establish the statute

use tolling is a "fact-intensive test," it
oflim itatio ns was tolled. Supermai/, 68 F.3d at 1206. Beca
is usually not appropriate for consideration in a motion to

dismiss and usually rese1ved for summary

1273, 1277 (9th Cir. 1993). However,
judgm ent or trial. See Cervantes v. City ofSan Diego, 5 F.3d
tiff fails to meet the burden of alleging
tolling can be considered in a motion to dismiss if the plain
Enters., 5 F.3d 391, 395 (9th Cir. 1993)
sufficient facts that give rise to tolling. See Hinton v. Pac.
(noting that the "burd en does not arise only after a motion

to dismiss; rather the plain tiff 'mus t plead

alment and state facts showing his due
with particularity the circumstances surrounding the conce
court must decide "whe ther the complaint,
diligence in trying to uncover the facts" '). Ultimately, a
Page 6 - OPINION AND ORD ER

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' system, adequately alleges facts showing the
liberally construed in light of [its] 'notice pleading
doctrine." Cervantes, 5 F.3d at 1277 (emphasis
pote ntial applicability of the equitable tolling
original).
In deciding a motion to dismiss, a court may cons

ider a document that is not attached to the

that document; and (2) its authenticity is not
complaint if: (!) the plain tiffs claim relies on
146 F.3d 699, 706 (9th Cir. 1998) ("We therefore
challenged by any party. Parrino v. FHP, Inc.,
iss may consider a document the authenticity of
hold that a district court ruling on a motion to dism
tiffs complaint necessarily relies."), supe rsed ed
which is not contested, and upon which the plain
by statute on othe r grou nds as recognized in Abre

go v. Dow Chem. Co., 443 F.3d 676, 681 (9th Cir.

ideration of these documents does not convert a
2006). Under the Parrino rule, the cour t's cons
g
judgment. Parrino, 146 F.3d at 706 n.4 (citin
motion to dismiss into a motion for summary
Indus., 998 F.2d 1192, 1196-97 (3d Cir. 1993));
Pension Benefit Guaranty Corp. v. White Consol.
r
F.3d 977, 980 (9th Cir. 2002) (stat ingth at"[u ]nde
cf Van Buskirkv. Cable News Network, Inc., 284

s
h] Circuit, a court may look beyond the pleading
the 'incorporation by reference' rule of [the Nint
one for summary judgment"). Furthermore, a
without converting the Rule 12(b)(6) motion into
claimant cannot survive a motion to dismiss by "deli

berately omitting references to documents upon

at 706; see Boon v. Union Pac. R. Co., No. 03: 1Owhich their claims are based." Parrino, 146 F .3d
. 30, 2011) ("a plaintiff may not evade dismissal
cv-01044-HU, 2011 WL 7452732, at *5 (D. Or. Sept
letter from their complaint or by failing to attach
by purposefully omitting the date of a right-to-sue
a copy of the letter to the complaint").
ral and state claims separately because
In this case, the court must consider Stewart's fede
ere may be two [right-to-sue] letters mailed on
different time limitations may apply. That is, "[t]h
Page 7 - OPINION AND ORDER

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r v. Aqua Glass Inc., Civ. No. 07-3088-CL,
separate days, providing different 90-day periods." Mille
erv. Ore., 481F .Sup p.2d 1156 , 1164 (D.
2010 WL 538230, at *3 (D. Or. Feb. 12, 2010); see Shar

C complaint requires the court to apply two
Or. 2007) (finding that co-filing a BOLI and EEO
different ninety-day periods if the claimant receives BOL

I and EEOC notices on different dates); see

t and Protective Order ofElks of US.,
also Jensen v. Swee t Home Lodge No. 1972 ofBenevolen

Civ.

16, 2007) (finding that "a joint filing with
No. 06-6329-AA, 2007 WL 3051657, at *2 (D. Or. Oct.
the EEOC and BOLI does not eliminate the limitation

s period under OR. REv. STAT. § 659A.875(2)").

A. Federal Claims

al court, a claimant must file a charge
Prior to commencing a Title Vil or AD A action in feder
y Eurocars, Inc. 112 F.3d 380, 383 (9th Cir.
of discrimination with the EEOC. Nelmida v. Shell

the claimant's beha lf within one-hundred1996). If the EEOC declines to pursue the charge on
eighty days of the filing of the charge, the EEOC will
the right-to-sue letter, claimant has ninety days to file

issue a right-to-sue letter. Upon issuance of

a civil action in comt. Id.; 42 U.S.C. § 2000e-

claims). This ninety-day period "acts as a
5(f)( l) (Title VII claims); 42 U.S.C. § 121l 7(a) (ADA
well as equitable tolling." Jones, 2007 WL
statute of limitations," which is "subject to waiver as
Inc., 455 U.S. 385, 398 (1982)). To calculate
2808562, at*2 (citing Zipes v. Trans World Airlines,

which a right-to-sue letter arrive[ s] at the
the ninety-day period, courts look to "the date on
t. Serv., Ltd., 495 F.3d 1119, 1122 (9th Cir.
claim ant's address ofrec ord." Payan v. Aramark, Mgm

estimate
2007). When the date of receipt is unknown, courts

the date "based on the date of EEOC

ensation for mailing time." Id. The Ninth
disposition and issuance of notice, with some comp
claimant receives a right-to-sue letter within
Circuit has adopted a rebuttable presumption that a
three days of its issuance. Id. at 1124-26.
Page 8 - OPINION AND ORDER

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this case, it is clear Stewart
Whe n considering the face of the Com plain t in
sufficient facts to establish the timeliness of his

has not plea ded

nal
federal claims. Stewart alleges he filed his origi

from the EEOC. (Second Am.
complaint after receiving a Noti ce of Righ t to Sue
Stewart filed the original com plain t on Dece mbe
the Second Ame nded Complaint now at issue on

Comp!.~~

7-8.)

r 6, 2013. (Comp!., Dkt. No. 1.) Stew art then filed
June 10, 2014. (Second Am. Comp!.) Beca use the

original complaint, the effective filing date of the
Second Ame nded Com plain t relates back to the
.
Second Ame nded Com plain t is Dece mbe r 6, 2013
t, relates back to the date of the original
An ame nded pleading, i.e., an amended complain
pleading whe n "the ame ndm ent asserts a claim

or defense that arose out of conduct, transaction,

or

the original pleading." FED. R. C1v. P. lS(l) (B).
occurrence set out- or attempted to be set out- in
s in the Com plain t regarding the date whic h he
Here, Stewart does not include factual allegation
did not attach the actual EEO C notice as
received the Noti ce of the Right to Sue. He also
s regarding the date
to his complaint. With out any factual allegation

an exhibit

in whic h he received the EEO C

Stew art filed his original complaint or Seco nd
notice, the cour t is unable to calculate whether
d
iving the EEO C notice. Stewart cann ot avoi
Ame nded Complaint with in ninety days of rece
the cour t to analyze its timeliness.
dismissal by omitting info rmat ion necessa1y for
of the complaint, the cour t cann ot establish
Moreover, even whe n looking beyond the face
C
ner. Alth ough Stewart did not attach the EEO
that Stew art's claims were filed in a timely man
plaint, Rock Tenn attached it to a decl arati on
right-to-sue letter to the Second Ame nded Com
. Ex. 2, Dkt. No. 41.) The cour t may consider the
supporting the moti on to dismiss. (Karpinski Deel
federal claims depends on that letter and because
EEO C letter because the timeliness of Stew art's
Pl. 's Resp. to Def. 's Mot. to Dismiss, at 3, Dkt.
neither party has challenged its authenticity. See
Page 9 - OPINION AND ORD ER

No.

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46 ("[O ]n or about June 25, 2013, the EEOC mail

ed Plain tiff the document entitled 'Dism issal and

Notice ofRi ghts . "'). The EEOC letter is addressed

to Stewart and is dated June 25, 2013. (Karpinski

-day rule, the
Deel. Ex. 2.) Applying the Nint h Circ uit's three

com t mus t presume Stewart received

h
28, 2013. The EEOC letter includes a paragrap
the EEO C Notice of Right to Sue letter on June
s, in part:
titled "NO TICE OF SUIT RIGHTS," whic h read
your right to sue that we will send
This will be the only notice of dismissal and of
nt(s) under federal law base d on this
you. You may file a lawsuit against the responde
t be filed WIT HIN 90 DAY S of
charge in federal or state court. Your lawsuit mus
d on this charge will be lost. (The
your receipt of this notice; or your right to sue base
state law may be different.)
time limit for filing suit based on a claim under
ired to file his federal
Id. (emphasis original). Accordingly, Stewart was requ
t on Decembe
26, 2013. Because he filed his original complain

claims by September

r 6, 2013, Stewart missed the deadline

to file his federal claims by seventy-two days.
circumstances that supp ort tolling the
Furthermore, the Complaint does not allege any
t
the merits of a request for tolling, a plain tiff mus
limitations period. Before a court can consider
ests that the court apply the doctrine
first allege facts giving rise to tolling. Stewart requ

of equitable

the Complaint. While application of the equitable
tolling, but fails to allege any supporting facts in
art
reserved for summary judg men t or trial, Stew
tolling doctrine is highly fact-based and often
nevertheless had the burden ofall egin g facts that

would make tolling a possibility. Because he faile

to meet that burden, the court cannot entertain the

d

possibility of tolling to overcome the Com plain t's

ld
ough the court concludes Stew art's claims shou
failure to mee t the timeliness requirements. Alth
or
that amending Stew art's claims wou ld be futile,
be dismissed, Roc k Tenn has not demonstrated
ng is foreclosed as a matter of law. Therefore, the
that application of the doctrine of equitable tolli
second, third, and eighth claims for relief.
court dismisses with out prejudice Stew art's first,
Page 10 - OPINION AND ORD ER

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B. State Claims

Rock Tenn next moves to dismiss Stewait' s state-law claims for relief because Stewart failed
to file them in a timely manner. Stewart argues his claims are timely under relevant state law and,
to the extent they are not, urges the court do apply federal law to find he filed within the
administrative limitations period.

1. Stewart's State-Law Claims are Time-barred Under State Procedural Rules
Before the court can address the merits of whether Stewart's claims should be dismissed as
untimely, it must determine the appropriate limitations period. Rock Tenn argues that the court
should apply the state statute oflimitations to find Stewart's claims time-barred. Stewart contends
that because his claims are in federal court subject to the court's supplemental jurisdiction, as
opposed to diversity jurisdiction, the court should apply the Federal Rules of Civil Procedure and
adjudge his claims timely.
To state-law claims before the court pursuant to its diversity jurisdiction, the court applies
federal procedural law and state substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).
However, the Ninth Circuit and the Supreme Court have not clearly established a rule governing
which procedural rules apply to state law claims in federal court pursuant to its supplemental
jurisdiction. See Montgomery v. City ofPortland Fire & Rescue, Civ. No. 08-1006-MO, 2009 WL
1329850, at *4 (D. Or. May 8, 2009) ("[T]he Supreme Court has not directly addressed which rule
applies for pendant state law claims brought under supplemental jurisdiction with a federal
question."). However, the principles identified in the existing case law support applying state law
on substantive issues and federal law on procedural issues. See Nathan v. Boeing Co., 116 F.3d 422,
423 (9th Cir. 1997) (noting that "courts apply the principles of Erie to pendent state law claims")
Page 11 - OPINION AND ORDER

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(full citation omitted); Hanna v. Plumer, 380 U.S. 460, 471 (1965). Applying those principles, the
court concludes it is appropriate to apply state statutes of limitation to determine whether Stewart's
state-law claims are timely.
Federal courts have determined statute of limitation and timeliness issues are "substantive"
for Erie purposes. In fact, the Ninth Circuit has declared that, "[s]tatutes of limitations, which
dictate the life of state causes of action, are too intimately connected with the substance of the statecreated right to be disregarded by the federal courts." Montgome1y, 2009 WL 1329850, at *4 (citing

Harvey's Wagon Wheel, Inc. v. Van Blitter, 959 F.2d 153, 157 (9th Cir. 1992)). As a result, "[ e]ven
though Rule 4(m) gives the court authority to extend time to effect service of a complaint, Rule 4(m)
does not change the substantive time limitation provisions of state law." Pelster ex rel Boyer v.

Walker, 185 F. Supp. 2d 1174, 1179 (D. Or. 2001). This District has consistently applied state
procedural law to pendant state-law claims, and the court sees no reason to depart from that practice
in this case. See id.; Montgomery, 2009 WL 1329850, at *5 (finding that "for the purposes tolling
the statute oflimitations for pendent state law claims, the commencement of a suit is determined by
state law"); Miller, 2010 WL 538230, at *3 (noting that "pendent state law claims are controlled by
Oregon law for tolling statute oflimitations").
Moreover, applying a federal rule to dictate the limitations period in this case would frustrate
a state-created right and could lead to forum shopping. If the court declined to apply the Oregon
statute of limitations, it would lead to the unusual result of allowing a state-law claim to proceed
despite the fact that would be dismissed as untimely if it were brought originally in state court. This,
in turn would lead to forum shopping by plaintiffs seeking to bring such a claim. Because forum
shopping is one of the hallmark considerations in the Erie analysis, the court finds it a persuasive

Page 12 - OPINION AND ORDER

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guide in concluding that the state statute of limitations is the appropriate rule to apply in this case.
Therefore, the court will rely on Oregon law to determine whether Stewart's claims are time-barred.
A claimant who has been subjected to unlawful employment practices in Oregon may also
file a complaint with BOLi. OR.REV. STAT.§ 659A.S20;Miller, 2010 WL 538230,at *3. However,
unlike federal employment discrimination claims, a claimant need not file a charge with BOLI prior
to commencing a civil action under Oregon law. OR. REv. STAT.§ 659A.870(2) ("The filing of a
complaint under ORS 659A.820 is not a condition precedent to the filing of any civil action."). If
a claimant files a complaint with BOLI and receives a right-to-sue letter, the claimant "must
commence a civil action under ORS 659A.885 within 90 days after a 90-day notice is mailed to the
complainant." OR. REV. STAT.§ 659A.875(2). Under Oregon law, a civil action commences when
the summons is served on the defendant. OR. REv. STAT.§ 12.020(1) (stating an action is deemed
commenced when filed and served on the defendant). If a claimant serves the defendant before sixty
days have passed from the date the complaint is filed, then date of commencement relates back to
the filing date. OR. REV. STAT. § 12.020(2).
Stewart filed his original complaint alleging state claims on December 6, 2013. (Comp!.,
Dkt. No. I.) Stewart filed the Second Amended Complaint on June 10, 2014. (Second Am. Comp!.)
As with Stewart's federal claims, the state claims relate back to the date Stewart filed his original
complaint because all his claims arise out of the same nucleus of operative facts. Therefore, the
effective filing date of the Second Amended Complaint is December 6, 2013. However, Stewart
does not include any factual allegations in the Second Amended Complaint regarding the date on
which he received BOLI's Notice of Right to File Suit. Although Stewart alleges in the Second

Page 13 - OPINION AND ORDER

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Amended Complaint that "Plaintiff filed his original complaint within ninety days of the date BOLi
issued a Notice of Right to Sue" (Second Am.

Comp!.~

need not accept as true at this stage of the case.

8.), this is a legal conclusion that the court

He also did not attach the actual BOLi notice.

Without any factual allegations regarding the date on which he received the BOLi notice, the court
cannot calculate whether Stewait filed his Second Amended Complaint within ninety days of
receiving the BOLi notice. As previously discussed, the Second Amended Complaint cannot survive
a motion to dismiss merely because Stewart omitted the information the court needs to make such
calculation.
Looking beyond the face of the Second Amended Complaint, the court cannot conclude as
a matter oflaw that Stewart's claims are timely. Rock Tenn attached a copy of the BOLi Notice of
Right to File Suit to a declaration supporting its Motion to Dismiss. (Karpinski Deel. Ex. 1, Dkt.
No. 41.) The comt may consider the BOLi notice without turning this motion to dismiss into
summary judgment because the timeliness of Stewart's state claims depends on that letter and
because neither party has challenged its authenticity. The BOLi notice is addressed to Stewart and
(

is dated October 9, 2013. (Karpinski Deel. Ex. 1.) Thus, Stewart was required to commence his suit
by Janua1y 7, 2014. Although Stewart filed the Complaint well before the January 7 deadline, he
did not serve Rock Tenn with the Complaint until June 13, 2014.

In order to meet the

commencement requirements, Stewart was required to file within ninety days and serve Rock Tenn
either before January 7 or within sixty days after filing the Complaint. Thus, for his claims to be
timely, Stewart was required to serve Rock Tenn by February 4, 2014. Stewart missed the February

4 deadline by 129 days. Accordingly, Stewart's state claims are time-barred under Oregon law, and

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the court dismisses his state-law claims with prejudice.
II. Motion for Leave to Amend
In response to Rock Tenn's motion to dismiss, Stewart filed a Motion for Leave to File a
Supplemental and Third Amended Complaint. (Pl. 's Mot. For leave to File a Supp. Third Am.
Comp!., Dkt. No. 43.) Stewart "seeks to Amend the Second Amended Complaint to reflect that he
met all administrative requirements and that he filed his Complaint within 90 days of his receipt of
the EEOC notice ofright to sue dated September 12, 2013, and within 90 days of the date of the
BOLI notice of right to sue." (Id.

at~

8.) Stewart also seeks to add supplemental claims related to

events that occurred after the Complaint was filed. Specifically, Stewart adds allegations that he
suffered from allergies in June-July 2014 and sought medical treatment. (Id.

at~

29.) He alleges

Rock Tenn suspended him on July 7, 2014, because Stewart was disabled, because he invoked his
right to take medical leave, and because he resisted Rock Tenn's discriminatory employment
practices. (Id.

at~

30-31.) Rock Tenn opposes the motion on the ground that it would be futile

because the supplemental claims do not relate back to the filing-date of the original complaint and
because the proposed Amended Complaint does not cure the Complaint's defects.
The court has broad discretion to grant a plaintiffs motion for leave to amend pursuant to
FED. R. Civ. P. 15(a). Nevertheless, the court may deny leave to amend where permitting the
amendment: (I) would cause prejudice the opposing patty; (2) would result in undue delay in
litigation; (3) would be futile; (4) is sought by plaintiffs in bad faith; or (5) the plaintiffs have filed
numerous amended complaints. Foman v. Davis, 371 U.S. 178, 182 (1962). To avoid denial due
to futility, the PAC must satisfy two requirements. First, the filing date must relate back to the date

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Stewart filed his original complaint. Second, it must include sufficient allegations to cure the defects
in the Second Amended Complaint.

A. The Amended Complaint Relates Back
Under FED. R. C1v. P. 15(1 )(B), an amended complaint relates back if"the amendment asserts
a claim or defense that arose out of conduct, transaction, or occurrence set out-or attempted to be
set out-in the original pleading." With regard to new claims, a court cannot consider new allegations
under Title VII that were not raised in the original EEOC charge unless they "encompass any
discrimination like or reasonably related to the allegations of the EEOC charge." Oubichon v. N

Am. Rockwell Corp., 482 F.2d 569, 571 (1973); Sosa v. Hiraoka, 920 F.2d 1451, 1456-57 (9th Cir.
1990) (analyzing the plaintiffs EEOC charge to determine whether the claims were "like or
reasonably related"). Factors a court may consider in determining whether the new allegations are
like or reasonable related to the previous allegations include "dates of discriminatory acts specified
within the charge, perpetrators of discrimination named in the charged, and any locations at which
discrimination is alleged to have occurred," as well as "the extent that those claims are consistent
with the plaintiffs original theory of the case." B.KB. v. Maui Police Dept., 276 F.3d 1091, 1100
(9th Cir. 2002).
The allegations in Stewart's Proposed Third Amended Complaint ("the PAC") relate back
to the original complaint because they raise similar claims concerning discriminatory conduct by
Rock Tenn in February, June, July, and August of2012. (Supplemental and Third Am. Comp!.
("PAC") ~~ 1-28, Dkt. No. 43.) The time frame and nature of the allegations in both complaints is
the same. (Compare Comp!. for Employment Discrimination, Dkt. No. 1 with the PAC, Dkt. No.

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43 (alleging that Stewart's supervisors referred to him using derogatory names and suspended him
for taking medical leave and filing a complaint about his supervisor's use of racial slurs).)
Moreover, his new claims and factual allegations are not inconsistent with the theories advanced in
the original complaint and subsequent amended complaints. Because Stewart's claims relate back
to his original complaint, they are not automatically time-barred. The comt next must determine
whether Stewait's PAC cures the defects contained in his previous pleadings.

B. The PAC Does Not Cure the Defects of his Prior Pleadings
Having dismissed Stewart's state claims with prejudice, the court considers Stewart's motion
for leave to amend the Complaint only with regard to his federal claims. In order for the PAC to cure
the defects of the Second Amended Complaint, it must either (I) plead facts that establish the
timeliness of Stewart's claims, or (2) plead sufficient facts to give rise to the possibility of tolling.
Stewart's PAC does neither, and thus fails to cure the defects in his Second Amended Complaint.
First, Stewart's PAC does not plead facts which establish the timeliness of his original
complaint. Stewart amended the Complaint to include the following allegation: "All administrative
requirements have been met, and Plaintiff filed his Complaint within 90 days of his receipt of the
EEOC notice ofright to sue dated September 12, 2013, and within 90 days of the BOLi notice of the
rightto sue dated October 9, 2013." (PAC at 'if 8.) Looking at the face of the complaint and relying
on the September 12 date Stewart alleges, the court calculates he filed his original complaint within
eighty-five days, which is within the ninety-day deadline.
However, looking beyond the face of the complaint, the court cannot affirmatively determine
that the original complaint was timely. Although Stewart did not include the September 12 EEOC

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letter in the PAC, he attached the September 12 letter to a declaration supporting his motion for leave
to amend. 1 (Deel. Of Travis Pierre Stewart Ex B, Dkt. No. 41.) The September 12, 2013 EEOC
letter on which Stewart's PAC relies is addressed to "Ted Corrales," not to Stewart. Id. Stewait
cannot establish his claim was timely by relying on a letter addressed to someone else. Stewart also
attached the June 25, 2013 letter to his declaration, which is addressed to him and provides clear
notice that he must file his claim within ninety days. (Stewart Deel. Ex. A.) The two letters conflict
with Stewart's factual allegations in the PAC and undermine his contention that his claims are
timely.
Furthermore, the PAC does not contain allegations that would give rise to a plausible
argument in favor of tolling. Before a court can consider the merits of a request for tolling, the
plaintiff must allege facts that would make tolling a possibility. Stewart failed to allege such facts
in the PAC. Because the PAC fails to cure the pleading defects of the Second Amended Complaint,
the court denies the motion for leave to amend. However, the court does so without prejudice to
Stewart's ability to amend in the future.
A statute oflimitations is subject to the doctrine of equitable tolling, which courts apply "in
extreme cases ... in a case-by-case analysis." Scholar v. Pacific Bell, 963 F.2d 264, 267 (9th Cir.
1992).2 In Gates v. Georgia-Pacific Co1p., 492 F.2d 292, 295 (9th Cir. 1974), the Ninth Circuit
1

The court may consider the EEOC letters because the timeliness of Stewart's federal claims
depends on the letters and because neither party has challenged their authenticity. Parrino v. FHP,
Inc., 146 F.3d 699, 706 (9th Cir. 1998) (holding that "a district court ruling on a motion to dismiss
may consider a document the authenticity of which is not contested, and upon which the plaintiffs
complaint necessarily relies").
2
0nApril 23, 2015, the U.S. Supreme Comtruled in the case of US. v. Wong, 575 U.S._,
WL 1808750 (2015), which held that a statute of limitations is subject to equitably tolling so
2015
long as the statute is not "jurisdictional" Pursuant to that ruling, the court now concludes 42 U.S.C.

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applied this doctrine in a case where "as a result of the Commissioner's error, appellee was confused,
and under the circumstances, acted with all of the diligence and promptness which could be
expected." The Ninth Circuit also recognized the potential applicability of this doctrine where "the
government's deliberate failure to provide [plaintiff! with accurate information" resulted in the
plaintiffs "ignorance of the event triggering the limitations period." Supermail Cargo, Inc. v. U.S.,
68 F.3d 1204, 1207-08 (9th Cir. 1995).
In Josephs v. Pac. Bell, 443 F.3d 1050, 1061 (9th Cir. 2006) (amended), the Ninth Circuit
provided significant guidance for when a pro se plaintiffs reliance on misinformation derived from
a governmental actor can give rise to equitable considerations. There, the plaintiff alleged he was
terminated from his employment due to his mental disability in violation of the ADA. Id. at 1061.
The plaintiff went to the EEOC office and, acting prose, completed the paperwork necessary to file
a charge of discrimination. Id. at 1058. An EEOC employee told the plaintiff"to have his attorney
contact the EEOC after he retained counsel." Id. The EEOC employee never filed the plaintiff's
charge or otherwise advanced his claim.

Id.

Relying on the EEOC employee's incorrect

representation that he could not file a charge pro se, he retained counsel. However, plaintiff's
attorney was unsuccessful in his attempts to file a timely charge on plaintiff's behalf. Id. The
plaintiff filed a complaint in federal district court, where a judgment was entered in plaintiff's favor
after a jury trial. Id. The defendant moved for a judgment as a matter of law in part because the
plaintiff's claims were untimely. Id. The trial judge denied the defendant's motion, and the Ninth

§ 2000e-5(f)(l) and 42 U.S.C. § 12117(a) may be tolled because they are mundane statutes of

limitations which speak "only to a claim's timeliness, not to [the] court's power." Wong, 575 U.S.
_,at *6. Moreover, those statutes do not "in any way cabin [the court's] usual equitable powers."
Id .. Therefore, the federal statutes of limitation at issue in this case may be equitably tolled.

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Circuit affirmed. Id. The Ninth Circuit held that filing a timely charge with the EEOC is "not a
jurisdiction prerequisite to filing suit, but is a requirement subject to equitable doctrines such as
waiver and tolling." Id. at 1061. Moreover, the court determined that a plaintiff is entitled to
equitable tolling where he:
(1) diligently pursued his claim; (2) was misinformed or misled by the administrative
agency responsible for processing his charge; (3) relied in fact on the misinformation
or misrepresentations of that agency, causing him to fail to exhaust his administrative
remedies; and (4) was acting pro se at the time.
Id. Ultimately, the court determined that the plaintiff was equitably excused from exhausting his
administrative remedy of filing a timely EEOC charge because he detrimentally relied on
misinformation given to him by an EEOC employee. Id. Although the court in Josephs was
applying an equitable exception to the requirement a plaintiff exhaust administrative remedies, the
court finds that the principles discussed in that case are equally applicable to cases where, as here,
the plaintiff failed to comply with the statute of limitations due to reliance on misinformation
supplied by an EEOC employee.
Here, the court concludes that Stewart is not legally or factually foreclosed from pleading
facts which give rise to tolling. In his declaration, Stewart states that after he received the Notice
of Rights Letter dated June 25, 2013, he called the EEOC and was told that the document merely
indicated his case was closed and that he would need to work with the EEOC San Francisco office
in the future. When Stewart called the San Francisco office, Stewait was told that his right-to-sue
letter would be sent to him in the near future along with his FOIA file. Fewer than ninety days after
he received the Notice of Rights Letter, Stewart received a letter addressed to Ted Corrales which,
unlike the June 25, 2013 letter, was titled "Notice of Right to Sue." (Stewart Deel. Ex. 2.) Stewart

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alleges that based on the conversation he had with the EEOC representatives, he was under the
impression that he needed a different "right-to-sue" letter prior to commencing his action. Id.
Stewart received a "right-to-sue" letter addressed to Ted Corrales on September 12, 2013, and,
believing it constituted notice of his right to sue, immediately began the process of filing his claims
in this court. Id. at 3.
These facts, if alleged in an amended complaint, could plausibly give rise to equitable tolling
under Josephs because: (!)Stewart diligently pursued his claim; (2) he was misinformed by an
EEOC employee regarding the legal effect of the July 25, 2013 Notice of Rights Letter; (3) he relied
on that the misinformation, which caused the statute oflimitations to run; and (4) atthe time, Stewart
was pro se.

The court is not convinced by Rock Tenn's argument that equitable tolling is

inappropriate because the Notice of Rights letter was clear and unambiguous. First, to the extent the
first Notice of Rights letter was clear and unambiguous, that clarity became muddled when Stewart
detrimentally relied on the EEOC's misrepresentations that a second letter would be forthcoming to
commence ninety-day filing period. Second, the court is not convinced Stewart was unreasonable
in waiting to file until after he received the second right-to-sue letter.

Given the EEOC's

representations, it was reasonable to believe a second letter was coming. Despite the fact the second
letter was addressed to "Ted Corrales," its arrival was consistent with Stewart's expectations of how
the claims process would proceed.
The court cannot authoritatively comment on whether Stewart is entitled to equitable tolling
under the Josephs rule, as he does not allege facts in his PAC which would give rise to its
application. However, it is not impossible for Stewart to do so. Although the court now denies

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Stewait' s Motion for Leave to Amend because the PAC fails to correct the deficiencies in the Second
Amended Complaint, amending Stewart's claims to adequately allege facts which give rise to
equitable tolling is not impossible. Therefore, the comt will deny Stewart's Motion without
prejudice to file a similar motion in the future.
Conclusion

For the aforementioned reasons, Rock Tenn's Motion to Dismiss (Dkt. No. 39) is
GRANTED. Stewart's first, second, third, and eighth claims for relief are dismissed without
prejudice; his fifth and ninth claims for relief are dismissed with prejudice; and his fourth, sixth, and
seventh claims for relief remain live claims, as Defendants did not move to dismiss them. Moreover,
Stewart's Motion for Leave to Amend (Dkt. No. 43) is denied, as the PAC fails to cure the
deficiencies contained in Stewart's Second Amended Complaint.
IT IS SO ORDERED.
DATED this 24th of April, 2015.

~V.ACOSTA
Uniteqptates Magistrate Judge

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