Romero-Manzano v. Carlton Nursery Company LLC
Filing
54
Opinion and Order: Granting Motion for Summary Judgment 41 and DISMISSING this matter with prejudice. Signed on 08/24/2016 by Judge Anna J. Brown. See attached 24 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CRISELDA ROMERO-MANZANO,
Plaintiff,
v.
CARLTON PLANTS, LLC, dba
CARLTON PLANTS, and CARLTON
NURSERY COMPANY, LLC,
Defendants.
SHELLEY LATIN
Legal Aid Services of Oregon
P.O. Box 1327
365 S.E. Third
Pendleton, OR 97801
(541) 276-6685
JULIE R. SAMPLES
Oregon Law Center
Farmworker Office
230 N.E. Second Ave
Suite D
Hillsboro, OR 97124
(503) 726 4381
Attorneys for Plaintiff
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3:15-CV-00508-BR
OPINION AND ORDER
MICHAEL C. PETERSEN
TRICIA M. OLSON
Heltzel Williams PC
P.O. Box 1048
Salem, OR 97308-1048
(503) 585-4422
Attorneys for Defendants
BROWN, Judge.
This matter comes before the Court on Defendants’ Motion
(#41) for Summary Judgment.
For the reasons that follow, the
Court GRANTS Defendants’ Motion and DISMISSES this matter with
prejudice.
BACKGROUND
The following facts are taken from the parties’ Joint
Statement of Agreed Material Facts and other summary-judgment
materials and are undisputed unless otherwise noted.
Defendant Carlton Plants, LLC, is an Oregon limitedliability company that grows bare-root trees, ornamental shrubs,
and root stock on approximately 1,850 acres of land in Dayton,
Oregon.
Defendant Carlton Nursery Company, LLC, is an Oregon
limited-liability company that owns some of the land on which
Carlton Plants grows nursery stock.
land to Carlton Plants.
Carlton Nursery leases the
Carlton Nursery does not have any
employees and only rents and leases real property.
Jon Bartch is
the sole member and registered agent of both Carlton Nursery and
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Carlton Plants.
Carlton Plants has two main divisions:
propagation.
bare root and
Each division has one production manager who has
oversight over his division and the authority to hire, fire,
promote, and demote employees as well as to alter employees’ rate
of pay and to assign them to various work crews.
Each division
has two area supervisors under the production manager who are
responsible for overseeing the work of crew leaders and the crews
that perform work in their divisions.
Each division has a number
of crew leaders who supervise work crews.
responsible for, among other things:
Crew leaders are
(a) preparing the buses
used to transport workers to the fields, (b) gathering tools and
water for their crews, (c) filling out time sheets for the
laborers on their crews, (d) filling out attendance sheets,
(e) instructing their crews how to perform their work and
monitoring that work, and (f) completing evaluations of workers.
Although crew leaders do not have the power to hire, fire,
promote, discipline, or transfer crew members, their evaluations
of crew members are considered by the production managers and the
Human Resources Manager to make decisions about promotions, wage
increases, discipline, and transfers.
Each division also has a
number of assistant crew leaders who assist crew leaders with the
daily work of the crew.
Plaintiff Criselda Romero-Manzano worked for Carlton Plants
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from 2003 to 2014.
During the relevant period Plaintiff worked
in the bare-root division, Carlton Davidson was the production
manager of the bare-root division, and Rosalio Rivera was one of
Plaintiff’s area supervisors.
Until January 2012 Plaintiff was
assigned to work with Crew Leader Joe Arguello.1
After January
2012 Plaintiff was assigned to work as an assistant crew leader
with Crew Leader Jose Carrillo.
On April 2, 2013, Plaintiff met privately with Carlton
Plants’ Human Resource Manager Sandra Siguenza.
Plaintiff
advised Siguenza that Carrillo was sexually harassing her.
Plaintiff told Siguenza that Carrillo periodically made Plaintiff
work separately from the rest of her crew and that he called her
outside of work to ask her out on dates.2
Plaintiff did not
provide any other details or instances of harassing conduct in
her meeting with Siguenza.
Plaintiff told Siguenza that she did
not want to work with Carrillo any longer and requested to be
transferred to a different crew leader.
Siguenza advised
Plaintiff that she would transfer her immediately.
Siguenza
asked Plaintiff to provide her with a written statement that
included any other details regarding harassment by Carrillo.
1
It is not clear on the record whether Plaintiff was an
assistant crew leader under Arguello or only a member of his
crew.
2
The record reflects Plaintiff did not tell Siguenza when
Carrillo called her to ask her out, but Plaintiff believes it was
in 2009.
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Plaintiff, however, never provided Siguenza with a written
statement or any other statement regarding harassment by
Carrillo.
On April 3, 2013, following her meeting with Plaintiff,
Siguenza called Davidson and requested he assign Plaintiff to a
different crew leader.
On April 4, 2013, Davidson reassigned
Plaintiff to Crew Leader Sam Hernandez.
Plaintiff’s work hours,
position, duties, rate of pay, and all other work benefits
remained the same after her transfer to Hernandez’s crew.
Plaintiff testified at deposition that the harassment by Carrillo
stopped after Plaintiff’s April 3, 2013, meeting with Siguenza,
and Plaintiff did not lodge any further complaints against
Carrillo.
Plaintiff worked at Carlton Plants through mid-July 2013 on
crews other than those run by Carrillo.
went on leave due to a work injury.
In July 2013 Plaintiff
Plaintiff was terminated in
April 2014 after she exhausted her medical leave.
The parties
agree Plaintiff’s termination was unrelated to the allegations in
this matter.
On December 30, 2013, Plaintiff co-filed a charge of
discrimination with the Oregon Bureau of Labor and Industries
(BOLI) and the Equal Employment Opportunity Commission (EEOC)
against Carlton Nursery only.
Plaintiff alleged claims for
hostile work environment and retaliation for filing a workers’
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compensation claim.3
On December 14, 2014, BOLI issued Plaintiff a Notice of
Right to File Civil Suit advising Plaintiff that she must file an
action against Carlton Nursery related to the allegations in her
BOLI complaint within 90 days of the date of the Notice or her
claims would be barred.
On March 25, 2015, the EEOC issued Plaintiff a Notice of
Right to Sue advising Plaintiff that she must file an action
against Carlton Nursery related to the allegations in her
complaint within 90 days of the date of the EEOC Notice or her
claims would be barred.
On March 26, 2015, Plaintiff filed a Complaint in this Court
against Carlton Nursery only in which she asserted claims for
hostile work environment in violation of Title VII, 42 U.S.C.
§ 2000e-2, and sex discrimination in violation of Oregon Revised
Statute § 659A.030(1)(a)-(b).
On May 13, 2015, Carlton Nursery filed an Answer and
Affirmative Defenses in which it denied Plaintiff’s allegation
that it was Plaintiff’s employer and asserted several affirmative
defenses based on the fact that Carlton Nursery was not
Plaintiff’s employer.
On June 19, 2015, Plaintiff filed an Amended Complaint to
add Carlton Plants as a defendant.
3
Plaintiff asserted the same
Plaintiff does not assert a claim for retaliation.
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claims for hostile work environment in violation of Title VII and
sex discrimination in violation of Oregon Revised Statute
§ 659A.030(1)(a)-(b).
On June 30, 2015, Carlton Plants filed an Answer to
Plaintiff’s Amended Complaint in which it asserted six
Affirmative Defenses including Plaintiff’s alleged failure to
exhaust administrative remedies and claims time-barred under the
statute of limitations.
On May 18, 2016, Defendants filed a Motion for Summary
Judgment.
The Court took Defendants’ Motion under advisement on
July 8, 2016.
STANDARDS
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Washington Mut. Ins. v. United
States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).
See also Fed. R.
The moving party must show the absence of a
dispute as to a material fact.
Rivera v. Philip Morris, Inc.,
395 F.3d 1142, 1146 (9th Cir. 2005).
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
. . . .
Id.
"This burden is not a light one
The non-moving party must do more than show there is
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some 'metaphysical doubt' as to the material facts at issue."
In
re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
The court must draw all
reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
Sluimer
"Summary
judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
Easter v. Am. W. Fin.,
381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).
A “mere
disagreement or bald assertion” that a genuine dispute as to a
material fact exists “will not preclude the grant of summary
judgment.”
Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-
1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).
When the nonmoving party's claims are factually
implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
LVRC Holdings LLC
v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.
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Miller v. Glenn Miller
Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
If the
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
Id.
DISCUSSION
Defendants move for summary judgment as to both of
Plaintiff’s claims on the grounds that (1) Carlton Nursery did
not employ Plaintiff; (2) Plaintiff’s claims against Carlton
Plants are time-barred; and (3) even if Carlton Nursery was
Plaintiff’s employer and/or Plaintiff’s claims against Carlton
Plants are not time-barred, Plaintiff fails to establish a
material dispute of fact exists as to her claims.
I.
Carlton Nursery was not Plaintiff’s employer.
As noted, Defendants move for summary judgment as to
Plaintiff’s claims against Carlton Nursery on the ground that
Carlton Nursery was not Plaintiff’s employer and, therefore,
cannot be liable to Plaintiff as a matter of law under Title VII
or § 659A.030.
Title VII provides in relevant part:
“It shall be an
unlawful employment practice for an employer - (1) to . . .
discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment,
because of such individual's . . . sex.”
2(a)(1)(emphasis added).
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42 U.S.C. § 2000e-
An “employer” is defined as “a person
engaged in an industry affecting commerce who has fifteen or more
employees.”
42 U.S.C. § 2000e(b).
An “employee” is defined as
“an individual employed by an employer.”
42 U.S.C. § 2000e(f).
Similarly, Oregon Revised Statute § 659A.030(1)(b) provides
in relevant part:
“It is an unlawful employment practice:
For
an employer, because of an individual's . . . sex . . . to
discriminate against the individual in compensation or in terms,
conditions or privileges of employment.”
Emphasis added.
An
employer is defined as “any person who . . . directly or
through an agent, engages or uses the personal service of one or
more employees, reserving the right to control the means by
which such service is or will be performed.”
§ 659A.001(4)(a).
Or. Rev. Stat.
Thus, Title VII and Oregon statutes prohibit
discrimination by “an employer.”
Defendants note Carlton Nursery and Carlton Plants are
separate and distinct corporate entities, and Plaintiff was hired
by and worked only for Carlton Plants.
The record reflects
Carlton Nursery is a limited-liability company organized and
operating for the sole purpose of owning real property that it
leases to Carlton Plants for cultivation.
never had any employees.
Carlton Nursery has
According to Defendants, because
Carlton Nursery was not Plaintiff’s employer, it cannot be
liable to Plaintiff as a matter of law under either Title VII or
§ 659A.030.
See, e.g., Coffin v. Safeway, Inc., 323 F. Supp. 2d
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997, 1002 (D. Ariz. 2004)(dismissing the plaintiff’s Title VII
sexual harassment claim against a party who was not the
plaintiff’s employer).
Plaintiff concedes she was “directly employed” by Carlton
Plants and that Carlton Nursery is a separate corporate entity
from Carlton Plants.
Nevertheless, Plaintiff asserts Carlton
Nursery should be liable for “the discriminatory acts” of Carlton
Plants under the “integrated-enterprise” test.
Plaintiff asserts
courts have applied the integrated-enterprise test to hold one
corporate entity liable for the acts of a separate corporate
entity.
As Defendants point out, however, courts have used the
integrated-enterprise test only to determine whether an employer
with less than 15 employees is so interconnected with another
employer that the number of both employers should be aggregated
for the sole purpose of meeting the 15-employee requirement of
Title VII.
For example, in Kang v. U Lim America, Inc., the
plaintiff worked for a California corporation, U Lim America,
which employed six or fewer employees.
U Lim America also owned
and operated U Lim de Mexico, a separate corporation that
employed between 50 and 150 workers.
The plaintiff brought an
action for national-origin discrimination in violation of Title
VII against U Lim America, who asserted it was not covered by
Title VII because it employed fewer than 15 people.
The Ninth
Circuit applied the integrated-enterprise test to evaluate
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whether the numbers of employees at U Lim America and U Lim de
Mexico should be combined solely for the purpose of determining
whether U Lim America should be considered as meeting the 15employee requirement of Title VII.
2002).
296 F.3d 810, 815 (9th Cir.
The Ninth Circuit concluded the number of employees at U
Lim America should be aggregated with the number of employees at
U Lim de Mexico, and, therefore, U Lim America met the 15employee requirement of Title VII.
Id. at 815-16.
The Ninth
Circuit, however, did not conclude (and the plaintiff did not
argue) that, as a result of the integrated-enterprise test, U Lim
de Mexico was also liable under Title VII as the plaintiff’s
employer.
Although the Ninth Circuit has applied the integrated-
employer test to combine the workforces of separate corporate
employers to determine Title VII jurisdiction, it has not used
the test to determine as a matter of law that both entities are
employers of a particular employee.
In fact, in Anderson v.
Pacific Maritime Association the Ninth Circuit specifically
rejected the parties’ assertion that the integrated-employer test
could be used to impose joint liability on the remaining
nonemployer defendant.
336 F.3d 924 (9th Cir. 2003).
In Anderson the plaintiffs brought an action under Title VII
against the shipping and stevedoring companies that hired the
plaintiffs; four chapters of their Union; and PMA, a nonprofit
association of the stevedoring and shipping companies.
12 - OPINION AND ORDER
The
plaintiffs alleged they were subjected to a racially hostile work
environment.
At some point the plaintiffs filed an amended
complaint asserting Title VII claims against the union and PMA
only.
Ultimately the plaintiffs’ claims against the union were
dismissed, and the district court entered summary judgment for
PMA on the ground that PMA was not the plaintiffs’ employer under
Title VII.
Id. at 928.
In granting summary judgment the
district court concluded, among other things, that the
integrated-employment test was inapplicable to determine PMA’s
liability.
The Ninth Circuit affirmed the district court’s grant
of summary judgment noting:
The district court's reluctance [to apply the
integrated-employer test to determine PMA’s
liability] was justified. The test does not
determine joint liability as the parties suggest,
but instead determines whether a defendant can
meet the statutory criteria of an “employer” for
Title VII applicability.
Title VII applies to an employer only if that
employer employs 15 or more employees. 42 U.S.C.
§ 2000e(b); see also Clackamas Gastroenterology
Assocs., P.C. v. Wells, 538 U.S. 440 (2003). A
plaintiff with an otherwise cognizable Title VII
claim against an employer with less than 15
employees may assert that the employer is so
interconnected with another employer that the two
form an integrated enterprise, and that
collectively this enterprise meets the 15–
employee minimum standard. We use the integrated
enterprise test to judge the magnitude of
interconnectivity for determining statutory
coverage.
PMA does not dispute that it employs at least 15
employees. . . . PMA’s status as an employer in
its own right[, however,] does not mean that a
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claim by the Plaintiffs, who were not PMA’s
employees, is cognizable under Title VII.
Id. at 928-29 (emphasis in original).
This Court, therefore,
declines to apply the integrated-enterprise test as a means of
determining whether Carlton Nursery may be liable as Plaintiff’s
employer.
Plaintiff also suggests Carlton Nursery may be held liable
either through piercing the corporate veil or the alter-ego
doctrine.
Courts have repeatedly made clear that corporations
are separate and individual entities that are not liable for the
acts of other corporations.
See, e.g., Crystal Cruises, Inc. v.
Moteurs Leroy-Somer S.A., 545 F. App’x 647, 647-48 (9th Cir.
2013)(“Corporations are treated as separate and distinct
entities.”).
Thus, “piercing the corporate veil ‘is an
extraordinary remedy which exists as a last resort, [when] there
is no other adequate and available remedy to repair plaintiff's
injury.’”
State ex rel. Neidig v. Superior Nat. Ins. Co., 343
Or. 434, 445 (2007)(quoting Amfac Foods v. Int'l Systems, 294 Or.
94, 103 (1982)).
“The equitable power to pierce the corporate
veil . . . is exercised only [when] there is clear evidence that
those who control the corporation have used it to shield
themselves improperly from responsibility.”
AFD China
Intellectual Prop. Law (USA) v. AFD China Intellectual Prop. Law
Office, 3:09-CV-1509-BR, 2014 WL 2619644, at *7 (D. Or. June 12,
2014)(citing Salem Tent & Awning Co. v. Schmidt, 79 Or. App. 475
14 - OPINION AND ORDER
(1986)).
Courts will also pierce the corporate veil under the
appropriate circumstances to prevent fraud and inequity.
Id.
Under Oregon law shareholders of a corporation may be held
liable if the corporation is a “mere 'instrumentality' or 'alter
ego' and [when] fraud or injustice has resulted.”
Brodle v.
Lochmead Farms, Inc., No. 10–cv-6386–AA, 2011 WL 4913657, at *6
(D. Or. Oct. 13, 2011)(quoting Amfac Foods, Inc. v. Int’l Sys. &
Controls Corp., 294 Or. 94, 105 (1982)).
As the court explained
in Brodle, “[g]enerally alter ego liability applies to
shareholders.”
2011 WL 4913657, at *6.
When a plaintiff has
failed to show a corporation has an ownership interest in another
corporation, alter-ego liability will not apply because “[i]t is
not enough [for liability of a separate corporation] to merely
claim that the [separate] corporations share employees and
business practices — some evidence of an ownership interest is
required for liability to attach.”
Id.
The record here does not
reflect Carlton Nursery and Carlton Plants share employees or
that Carlton Nursery has any ownership interest in Carlton
Plants.
As noted, they are, in fact, two entirely separate,
unrelated corporations.
Even if the alter-ego or veil-piercing theory applied to
separate corporations such as Carlton Nursery and Carlton Plants,
Plaintiff fails to establish such an extreme approach is
warranted here.
To hold an affiliated corporation liable under
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an alter-ego theory under Oregon law, the court must find:
(1)
the affiliated corporation “actually controlled”
the other corporate entity;
(2)
the affiliated corporation “used its control over
the corporation to engage in improper conduct”;
(3)
as a result of the improper conduct, the plaintiff
was harmed; and
(4)
there is no other adequate and available remedy to
repair plaintiff's injury.
Brodle, 2011 WL 4913657, at *6 (citations omitted). Improper
conduct includes:
(a) gross undercapitalization of the
corporation, (b) milking the corporation by payment of excessive
dividends, (c) misrepresentation, (d) commingling of assets, and
(e) not holding out the corporate entity as a separate
enterprise.
Amfac, 294 Or. at 109-10.
Plaintiff relies on
alleged control of Carlton Plants by John Bartch, the sole member
of Carlton Plants and Carlton Nursery, to support her assertion
that the Court should pierce the corporate veil of Carlton
Nursery and hold it liable for Carlton Plants.
Although
Plaintiff concedes Carlton Nursery and Carlton Plants do not
share personnel or payroll services, Plaintiff notes Carlton
Plants pays rent to Carlton Nursery and Bartch is the sole member
of both Carlton Nursery and Carlton Plants.
Plaintiff also
asserts Bartch makes “employment decisions” for Carlton Plants
and relies on Bartch’s deposition testimony to support her
assertion.
In his deposition, however, Bartch does not state he
16 - OPINION AND ORDER
makes the employment decisions for Carlton Plants.
During
Bartch’s deposition Plaintiff’s counsel asked him whether he was
“the person ultimately in control of every decision that is made
for Carlton Plants?”
Bartch responded:
broad statement. . . .
with Carlton Plants.”
“Again, that’s a very
I’m responsible for the business dealings
Bartch Depo. at 23.
More importantly, Plaintiff does not point to any evidence
in the record of gross undercapitalization of Carlton Nursery,
payment of any dividends by Carlton Nursery, any
misrepresentation by Carlton Nursery, or any failure of Carlton
Nursery to hold itself out as a separate enterprise from Carlton
Plants.
Plaintiff also fails to show that there is not any
“other adequate and available remedy to repair plaintiff's
injury” or to establish that fraud or inequity will result if the
Court declines to pierce Carlton Nursery’s corporate veil.
Amfac, 294 Or. at 103.
On this record the Court concludes Plaintiff has not
established “clear evidence that those who control the
corporation have used it to shield themselves improperly from
responsibility.”
AFD China, 2014 WL 2619644, at *7.
The Court,
therefore, declines to exercise its equitable power to pierce
Carlton Nursery’s corporate veil and to hold it liable for the
actions of Carlton Plants.
Thus, Plaintiff has not established
Carlton Nursery was her employer, and, therefore, Carlton Nursery
17 - OPINION AND ORDER
is not liable to Plaintiff under either Title VII or § 659A.030
as a matter of law.
Accordingly, the Court grants Defendants’ Motion for Summary
Judgment as to Plaintiff’s claims against Carlton Nursery.
II.
Plaintiff’s Title VII Claim against Carlton Plants is timebarred.
Defendants seek summary judgment as to Plaintiff’s Title VII
Claim against Carlton Plants on the ground that it is timebarred.
A plaintiff must file a timely charge of discrimination with
the EEOC as a prerequisite to bringing an action under Title VII.
42 U.S.C. § 2000e–5(e)(1), which requires a complainant to file a
charge with the EEOC within 180 days “after the alleged unlawful
employment practice occurred” unless the complainant “initially
institute[s] proceedings with a State or local agency,” in which
case the complainant must file an EEOC charge within 300 days.
The record reflects Plaintiff’s alleged harassment by
Carrillo ended no later than April 2, 2013.
Plaintiff filed her
EEOC/BOLI complaint against Carlton Nursery only on December 30,
2013.
Defendants note 300 days before December 30, 2013, is
March 5, 2013, and, therefore, Plaintiff may not base her claim
on any alleged harassment that occurred before March 5, 2013.
More importantly, the record reflects Plaintiff failed to comply
with the prerequisite to filing a Title VII complaint set out in
42 U.S.C. § 2000e–5(e)(1) because Plaintiff did not file an EEOC
18 - OPINION AND ORDER
or BOLI complaint against Carlton Plants.
The Supreme Court and
Ninth Circuit have made clear that “[a]n individual's failure to
file a charge with the agency within [the] time frame [set out in
§ 2000e-5(e)(1)] will usually operate to bar that person from
bringing a lawsuit for failure to exhaust their administrative
remedies.”
Ariz. ex rel Horne v. Geo Group, Inc., 816 F.3d 1189,
1202 (9th Cir. 2016)(citing Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 393–94 (1982)).
In addition, Plaintiff cannot now
exhaust her administrative remedies by filing an EEOC complaint
against Carlton Plants because, as noted, it has been more than
300 days since the last possible act of discrimination.
In her Response Plaintiff asserts the continuing-violation
doctrine applies to her Title VII claim, and, therefore, the
Court may consider all of Carrillo’s acts of harassment because
Plaintiff has alleged at least one act of harassment occurred
after March 5, 2013.
Plaintiff’s continuing-violation argument
however, relies on the EEOC complaint she filed as to Carlton
Nursery only.
Plaintiff does not cite any authority for the
proposition that filing an EEOC complaint against one corporation
satisfies the exhaustion requirement of § 2000e-5(e)(1) as to a
different, separate corporation, and, as noted, the Court has
already concluded Carlton Plants and Carlton Nursery are two
separate and distinct corporations and has declined to pierce the
corporate veil of Carlton Nursery or to apply the alter-ego
19 - OPINION AND ORDER
theory to Carlton Nursery and Carlton Plants.
The Court,
therefore, concludes Plaintiff has failed to satisfy the
exhaustion requirement of § 2000e-5(e)(1).
In addition, it has
been more than 300 days since the last possible act of harassment
(which occurred no later than April 2, 2013), and, therefore,
Plaintiff may not now timely file an EEOC complaint against
Carlton Plants.
Plaintiff also does not point to any evidence or make any
allegations from which the Court could infer that equitable
tolling of the exhaustion period would be appropriate.
The Ninth
Circuit has explained “[e]quitable tolling focuses on whether
there was excusable delay by the plaintiff and may be applied if,
despite all due diligence, a plaintiff is unable to obtain vital
information bearing on the existence of his claim.”
Huseman v.
Icicle Seafoods, Inc., 471 F.3d 1116, 1120 (9th Cir. 2006)
(quotation omitted)(emphasis in Huseman).
See also Burnett v.
New York Cent. R. Co., 380 U.S. 424, 429 (1965)(allowing
equitable tolling when “a plaintiff has not slept on his rights,
but rather, has been prevented from asserting them.”).
Plaintiff
does not allege she was mistaken or confused as to the fact that
Carlton Plants was her employer.
In fact, the parties note in
their Joint Statement of Material Facts that when she began
working for Carlton Plants, Plaintiff received a copy of the
“Carlton Plants Employee Handbook” and signed an Acceptance of
20 - OPINION AND ORDER
the Handbook.
The parties also agree in their Joint Statement
that the Carlton Plants Handbook contained a policy against
harassment that advised employees to report harassment to two
Carlton Plants supervisors or Jon Bartch.
In addition, Plaintiff
does not allege she was unable to file a timely EEOC/BOLI
complaint against Carlton Plants for any reason.
Accordingly, the Court grants Defendants’ Motion for Summary
Judgment as to Plaintiff’s Title VII claim against Carlton
Plants.
III. Plaintiff’s § 659A.030 Claim against Carlton Plants is timebarred.
Defendants move for summary judgment as to Plaintiff’s
state-law claim for hostile work environment in violation of
§ 659A.030 against Carlton Plants on the ground that it is timebarred.
Oregon Revised Statute § 659A.875(1) and (2) provide in
relevant part:
(1) . . . [A] civil action . . . alleging an
unlawful employment practice must be commenced
within one year after the occurrence of the
unlawful employment practice unless a complaint
has been timely filed [with BOLI].
(2) A person who has filed a [BOLI] complaint
. . . must commence a civil action under ORS
659A.885 within 90 days after a 90-day notice is
mailed to the complainant under ORS 659A.880.
Thus, an individual who alleges an unlawful employment practice
must bring an action either within one year of the occurrence of
21 - OPINION AND ORDER
the unlawful practice or, if an individual has filed a BOLI
complaint, within 90 days after BOLI has mailed its 90-day Notice
letter.
As noted, Plaintiff’s alleged harassment by Carrillo ended
no later than April 2, 2013.
Plaintiff did not file her original
Complaint in this Court until March 26, 2015, which is more than
one year after the last possible date of harassment.
In order
for her state-law claim to be timely, therefore, Plaintiff was
required to file it not more than 90 days after BOLI mailed her
the 90-day Notice letter.
As noted, BOLI sent Plaintiff a right-
to-sue Notice as to Carlton Nursery (the only party against whom
she asserted her BOLI complaint) on December 30, 2014.
Even if
Plaintiff’s BOLI complaint filed only against Carlton Nursery
could be interpreted to encompass Plaintiff’s state-law claim
against Carlton Plants, the claim would be time-barred because
Plaintiff failed to file her original Complaint against Carlton
Nursery until March 26, 2015, which is 103 days after BOLI sent
Plaintiff’s 90-day Notice Letter.4
The record reflects Plaintiff received her Notice of Right
to Sue from the EEOC on March 25, 2015, which is only one day
before she filed her original Complaint in federal court.
This
Court and other courts in Oregon, however, have held a
4
Plaintiff did not file her Amended Complaint adding
Carlton Plants as a party until June 19, 2015, which is nearly
seven months after BOLI sent Plaintiff a 90-day Notice Letter.
22 - OPINION AND ORDER
plaintiff's state-law claims under § 659A are time-barred when
they are filed more than 90 days after the mailing of the BOLI
letter even if filed less than 90 days after the plaintiff
receives an EEOC right-to-sue letter.
See, e.g., Sharer v.
Oregon, 481 F. Supp. 2d 1156, 1164 (D. Or. 2007)(concluding the
plaintiff’s state-law whistleblower claim under § 659A was
time-barred because it was filed more than 90 days after the
mailing of the BOLI letter but less than 90 days after the
plaintiff received an EEOC right-to-sue letter)(citing Snook v.
Rabold, No. CV 06–849–MO, 2006 WL 2934274 (D. Or. Oct. 12, 2006),
and Chestnut v. Fred Meyer Jewelry, Inc., No. Civ. 02–3088–CO,
2004 WL 1900556 (D. Or. Aug. 24, 2004)).
Thus, because Plaintiff
did not file her original Complaint against Carlton Nursery in
this Court within 90 days of BOLI mailing her 90-day Notice
letter, the fact that she filed her original Complaint within 90
days of receipt of her EEOC right-to-sue letter does not render
her state-law claims timely.
Accordingly, the Court grants Defendants’ Motion for Summary
Judgment as to Plaintiff’s state-law claim against Carlton
Plants.
CONCLUSION
For these reasons, the Court GRANTS Defendants’ Motion (#41)
23 - OPINION AND ORDER
for Summary Judgment and DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 24th day of August, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
24 - OPINION AND ORDER
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