James v. Sapa Extrusions North America

Filing 37

Opinion and Order: The Court GRANTS Defendants Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) Motion [#28] to Dismiss and DISMISSES with prejudice Plaintiffs claims for violation of Title VII and Oregon Revised Statutes § 659A.0 30(1)(f). Accordingly, this matter will proceed only as to Plaintiffs claim for violation of § 659A.199 as set out in this Opinion and Order. Defendant directed to file no later than 2/14/18, an Answer addressing Plaintiffs claim for violation of § 659A.199. The Court DIRECTS the parties to confer and to submit no later than 2/28/18, a jointly proposed case-management plan. Signed on 01/30/18 by Judge Anna J. Brown. See attached Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JOHN FREDERICK JAMES,
Plaintiff,
v.
SAPA PROFILES, INC.,
Defendant.

JOHN FREDERICK JAMES
504 S.E. 103rd Ave.
Vancouver, WA 98664
Plaintiff, Pro Se
FRANCIS T. BARNWELL
MEGAN J. CROWHURST
Bullard Law
200 S.W. Market Street
Suite 1900
Portland, OR 97201
[phone]
Attorneys for Defendant

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3:17-CV-00338-BR
OPINION AND ORDER

BROWN, Judge.
This matter comes before the Court on Defendant’s Federal
Rule of Civil Procedure 12(b)(1) and 12(b)(6) Motion (#28) to
Dismiss Plaintiff’s Fourth Amended Complaint.

For the reasons

that follow, the Court GRANTS Defendant’s Motion to Dismiss
Plaintiff’s claims for violation of Title VII and Oregon Revised
Statutes § 659A.030(1)(f).

BACKGROUND
On May 4, 2015, Defendant Sapa Profiles, Inc., hired
Plaintiff John Frederick James as a general laborer in the
coatings department of its Portland facility.
In his Third Amended Complaint Plaintiff alleged the
following facts:
(1)

In July 2015 he reported to his manager and a co-worker
that “the sweeper” batteries had not been changed even
though the “green card sheet” stated they had been
changed on June 18, 2015.

(2)

In August 2015 Plaintiff provided plans to co-workers
to fix the spray booth that was over-spraying, and his
coworkers “wadded [them] up and [threw] them away.”

(3)

On October 10, 2015, a coworker told Plaintiff not to
come to work the following day.

When Plaintiff stated

he planned to come to work the next day, his coworker
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responded:

“Boy, you are just looking to get hurt

aren’t you?”
(4)

On October 10, 2015, Plaintiff telephoned the warehouse
manager, Sam Gress, about his coworker’s comment, but
Gress did not meet with Plaintiff or return any more
telephone calls from Plaintiff.

(5)

On October 11, 2015, when Plaintiff arrived at work,
three coworkers met him in the parking lot and told
him:

“I told you not to show up,” “What’s it take[,] a

bad accident . . . or something before you realize no
one wants you here,” and “Don’t come back.”
(6)

On October 23, 2015, Plaintiff received a letter from
Defendant stating Plaintiff was “a voluntary quit”
because he had missed three or more unreported days of
work.

On July 18, 2016, Plaintiff filed a complaint with the
Oregon Bureau of Labor and Industries (BOLI) alleging he was
terminated for whistleblowing activities in violation of Oregon
Revised Statutes § 659A.199 and that he was also subjected to a
hostile work environment.

Specifically, Plaintiff alleged he

reported to his manager and a lift driver in July 2015 that
(1) the batteries on “the sweeper” were in dangerous condition
and could explode at any time; (2) the maintenance log falsely
reflected the batteries for the sweeper had been replaced on

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July 18, 2015; and (3) “the green card sheet” falsely reflected
maintenance had replaced “the blower motor.”

Plaintiff also

alleged he was told by his work partner on October 10, 2015, that
Defendant would not need Plaintiff to report to work the
following day.

When Plaintiff stated he was going to come to

work anyway, his work partner allegedly responded:
must want to get hurt.”

“Man! You

Plaintiff arrived for his shift on

October 11, 2015, and was threatened by three of Defendant’s
employees “in retaliation for [his] earlier reports.”

Defendant,

however, alleges Plaintiff was sent home because he was not
scheduled to work.

On October 23, 2015, Plaintiff received a

letter from Defendant in which Defendant stated Plaintiff had
voluntarily resigned because he had not been to work since
October 11, 2015.

Plaintiff did not file a complaint with the

Equal Employment Opportunity Commission (EEOC) nor did BOLI
cross-file Plaintiff’s complaint with the EEOC.
On November 2, 2016, BOLI issued to Plaintiff a right-tosue letter in which it advised Plaintiff that he had “the right
to file a suit in state circuit court . . . within 90 days from
the date of this letter.
lost.”

After 90 days, this right will be

Def.’s Mot. to Dismiss, Ex. B at 1.

On January 27, 2017, Plaintiff filed a pro se complaint
against Defendant in Multnomah County Circuit Court alleging
claims for employment discrimination in violation of Title VII,

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42 U.S.C. § 2000e-3(a); the National Labor Relations Action
(NLRA), 29 U.S.C. § 157; Oregon Revised Statutes §§ 243.672(1),
659A.030(1)(f), 659A.199, and 659A.200-659A.236; and the Revised
Code of Washington (RCW) §§ 49.60.210 and 41.56.140.

Plaintiff

served Defendant with the complaint on January 30, 2017.1
On February 3, 2017, Plaintiff filed an amended complaint
in state court against Defendant to add facts to support his
claims.

Plaintiff served his amended complaint on Defendants on

February 6, 2017.
On February 28, 2017, Defendant removed the matter to this
Court on the grounds of both federal-question and diversity
jurisdiction.

Defendant served Plaintiff with its Notice of

Removal on February 28, 2017.
On March 3, 2017, Plaintiff filed a third amended complaint
in state court.

Plaintiff did not serve the third amended

complaint on Defendant.

Nevertheless, Defendant attached the

third amended complaint to its Notice of Removal and relied on
the third amended complaint as the operative complaint when it
removed the matter to this Court.
On April 4, 2017, Defendant filed a Motion to Dismiss the
Third Amended Complaint.

1

Defendant states in its Notice of Removal that it appears
from the Multnomah County Circuit Court docket that Plaintiff
filed another complaint on January 29, 2017, but Plaintiff did
not serve that complaint on Defendant.
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On June 23, 2017, the Court issued an Opinion and Order in
which it granted Defendant’s Motion to Dismiss and dismissed with
prejudice Plaintiff’s claims for violation of the NLRA, violation
of Oregon Revised Statutes §§ 243.672 and 659A.200-659A.224, and
violation of Revised Code of Washington §§ 49.60.210 and
41.56.140.

The Court granted without prejudice Defendant’s

Motion to Dismiss Plaintiff’s claims for violation of Title VII
and Oregon Revised Statutes §§ 659A.030(1)(f) and 659A.199.

The

Court granted Plaintiff leave to file a Fourth Amended Complaint
to the extent that Plaintiff could allege facts to support a
claim for violation of Title VII and Oregon Revised Statutes
§ 659A.030(1)(f) and/or § 659A.199 as set out in the Court’s
Opinion and Order.
On August 18, 2017, Plaintiff filed a Fourth Amended
Complaint in which he alleges claims for retaliation in violation
of Title VII and Oregon Revised Statutes § 659A.030(f)(1).
On October 17, 2017, Defendant filed a Motion to Dismiss
Plaintiff’s Fourth Amended Complaint.
On November 13, 2017, Defendant filed a Reply in support of
its Motion to Dismiss.
On November 14, 2017, Plaintiff filed a Response to
Defendant's Motion to Dismiss.
On November 20, 2017, the Court entered an Order in which it
noted Plaintiff’s Response was filed after Defendant’s Reply and,

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therefore, permitted Defendant to file a Sur-Reply to Plaintiff’s
Response not later than December 4, 2017.
On November 20, 2017, Plaintiff filed an Amended Response to
Defendant’s Motion to Dismiss in which he noted he “realize[d]
mistakes previously made by listing the incorrect Oregon Revised
Statute in the case, when plaintiff should have listed 2015 ORS
659A.233.”

Am. Resp. at 7.

Defendant did not file a Sur-Reply.

The Court took this matter under advisement on December 4,
2017.

STANDARDS
I.

Dismissal for Lack of Jurisdiction Pursuant to Rule 12(b)(1)
Plaintiff has the burden to establish that the court has

subject-matter jurisdiction.
726, 728 (9th cir. 2009).

Robinson v. Geithner, 359 F. App'x

See also Ass'n of Am. Med. Coll. v.

United States, 217 F.3d 770 (9th Cir. 2000).
When deciding a motion to dismiss for lack of subject-matter
jurisdiction under Rule 12(b)(1), the court may consider
affidavits and other evidence supporting or attacking the
plaintiff's jurisdictional allegations.
F.3d 1108, 1114 n.1 (9th Cir. 2013).

Rivas v. Napolitano, 714

The court may also permit

discovery to determine whether it has jurisdiction.

Laub v.

United States Dep't of Interior, 342 F.3d 1080, 1093 (9th Cir.
2003).

When a defendant's motion to dismiss for lack of

7 - OPINION AND ORDER

jurisdiction "is based on written materials rather than an
evidentiary hearing, the plaintiff need only make a prima facie
showing of jurisdictional facts to withstand the motion to
dismiss."

Mavrix Photo, Inc. v. Brand Tech., Inc., 647 F.3d

1218, 1223 (9th Cir. 2011)(citation omitted).
II.

Dismissal for Failure to State a Claim Pursuant to Rule
12(b)(6)
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.” [Bell Atlantic v.
Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955
[(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. Id. at 556. . . . 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.
Ibid. Where a complaint pleads facts that are
“merely consistent with” a defendant's liability,
it “stops short of the line between possibility
and plausibility of ‘entitlement to relief.’” Id.
at 557, 127 S. Ct. 1955 (brackets omitted).

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
Atlantic, 550 U.S. at 555-56.

See also Bell

The court must accept as true the

allegations in the complaint and construe them in favor of the
plaintiff.

Novak v. U.S., 795 F.3d 1012, 1017 (9th Cir. 2015).

"In ruling on a 12(b)(6) motion, a court may generally
consider only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice."

Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

8 - OPINION AND ORDER

2012)(citation omitted).

A court, however, "may consider a

writing referenced in a complaint but not explicitly incorporated
therein if the complaint relies on the document and its
authenticity is unquestioned."

Swartz v. KPMG LLP, 476 F.3d 756,

763 (9th Cir. 2007)(citation omitted).
A pro se plaintiff's complaint “must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam).
the court must construe pro se filings liberally.

Thus,

When a

plaintiff fails to state a claim, “[l]eave to amend should be
granted unless the pleading ‘could not possibly be cured by the
allegation of other facts,’ and should be granted more liberally
to pro se plaintiffs.”

Ramirez v. Galaza, 334 F.3d 850, 861 (9th

Cir. 2003)(quoting Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
2000)).

DISCUSSION
In its Motion to Dismiss Defendant asserts the Court should
dismiss with prejudice Plaintiff’s Title VII and Oregon Revised
Statutes § 659A.030 claims for failure to state a claim and for
failure to exhaust administrative remedies.

Defendant also notes

to “the extent this Court determines that Plaintiff has
sufficiently pled an ORS 659A.199 claim. . . Defendant will
promptly file an Answer pleading.”
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I.

Plaintiff’s Claims under Title VII and Oregon Revised
Statutes § 659A.030(f)(1)
As noted, Defendant moves to dismiss Plaintiff’s claims

under Title VII and Oregon Revised Statutes § 659A.030(f)(1) on
the ground that Plaintiff fails to state a claim.
To state a claim for retaliation under Title VII a plaintiff
must allege (1) he engaged in protected activity, (2) the
defendant subjected him to an adverse employment action, and
(3) “a causal link exists between the protected activity and the
adverse action.”

Lindsey v. Clatskanie People’s Utility Dist.,

140 F. Supp. 3d 1077, 1086 (D. Or. 2015)(quoting Manatt v. Bank
of Am., NA, 339 F.3d 792, 800 (9th Cir. 2003)).

Similarly, to

establish a prima facie case of retaliation under § 659A.030 a
plaintiff must show
(1) he engaged in a protected activity, (2) the
defendant subjected the plaintiff to an adverse
employment action, and (3) a causal link exists
between the protected activity and the adverse
action.
Manatt v. Bank of Am., NA, 339 F.3d 792, 800 (9th Cir. 2003)
(quotation omitted).

See also Harris v. Pameco Corp., 170 Or.

App. 164, 178-79 (2000)("A plaintiff seeking to establish a prima
facie case of retaliation under ORS 659A.030(1)(f) must establish
the same elements as are required under Title VII.").

“The . . .

analysis for retaliation under Title VII and ORS § 659A.030 is
substantially similar, and courts analyze the claims together.”

10 - OPINION AND ORDER

Lindsey, 140 F. Supp. 3d at 1086.
As the Court advised Plaintiff in its June 23, 2017, Opinion
and Order, “Title VII's anti-retaliation provision defines
protected activity as either (1) opposing any practice made an
unlawful employment practice by Title VII or (2) making a charge,
testifying, assisting, or participating in any manner in an
investigation, proceeding, or hearing under Title VII.”

Rivera

v. East Bay Municipal Utility Dist., No: C 15-00380 SBA, 2016 WL
374180, at *5 (N.D. Cal. Feb. 1, 2016)(citing 42 U.S.C.
§ 2000e-3(a)).2

The first clause is known as the “opposition

clause,” and the second is known as the “participation clause.”
Crawford v. Metro. Gov't of Nashville & Davidson Cnty., Tenn.,
555 U.S. 271, 274 (2009).

Title VII defines unlawful employment

practices as failing or refusing to hire, discharging, or
“otherwise . . . discriminat[ing]” against any individual
“because of such individual's race, color, religion, sex, or
national origin.”

42 U.S.C. § 2000e-2.

In his Third Amended Complaint Plaintiff alleged he was
retaliated against for reporting that the sweeper batteries had
not been changed and that the green card reflected the sweeper

2

Similarly, Oregon Revised Statutes § 659A.030(1)(f)
provides it is an unlawful employment practice for an employer to
“discharge . . . any other person because that other person has
opposed any unlawful practice, or because that other person has
filed a complaint, testified or assisted in any proceeding under
this chapter or has attempted to do so.”
11 - OPINION AND ORDER

batteries had been changed.

The Court advised Plaintiff in its

June 23, 2017, Opinion and Order that Plaintiff’s report relating
to the sweeper batteries does not involve any “practice made an
unlawful employment practice by Title VII” or § 659A.030(1)(f).
Moreover, Plaintiff did not allege any facts from which the Court
could infer he had opposed any specific discriminatory conduct
against any individual because of the individual’s race, color,
religion, sex, or national origin.

The Court, therefore,

concluded Plaintiff had not alleged a claim under the “opposition
clause” of Title VII or § 659A.030(1)(f).

See Phillips v. Mabus,

No. 12–00384 LEK– RLP, 2013 WL 4662960, at *13 (D. Haw. Aug. 29,
2013)(“[T]he opposed conduct must fairly fall within the
protection of Title VII to sustain a claim of unlawful
retaliation.”).
In addition, as the Court advised Plaintiff in its June 23,
2017, Opinion and Order, “[t]he participation clause is broadly
construed to protect employees who utilize the tools provided by
Congress to protect their rights.”

Id.

The “mere fact that an

employee is participating in an investigation or proceeding
involving charges of some sort of discrimination, however, does
not automatically trigger [the participation clause]; the
underlying discrimination must be reasonably perceived as
discrimination prohibited by Title VII.”

Id.

In particular,

“[t]he participation clause only prohibits retaliation against

12 - OPINION AND ORDER

persons who participate in the EEOC process.”

Id., at *14

(citing Greisen v. City of North Las Vegas, 251 F. App’x 462, 463
(9th Cir. 2007)).

The Court noted Plaintiff did not allege in

his Third Amended Complaint that he participated in any
investigation or proceeding that involved discrimination in
violation of Title VII or § 659A.030(1)(f).

The Court,

therefore, concluded Plaintiff had not alleged a claim under the
participation provision of Title VII or § 659A.030(1)(f).
Plaintiff again does not allege any facts in his Fourth
Amended Complaint from which the Court could infer he had opposed
any specific discriminatory conduct against any individual
because of the individual’s race, color, religion, sex, or
national origin nor that he participated in any investigation or
proceeding that involved discrimination in violation of Title VII
or § 659A.030(1)(f).

The Court, therefore, concludes Plaintiff

has not stated a claim for retaliation in violation of Title VII
or § 659A.030(f)(1).
The Court has already provided Plaintiff with numerous
opportunities to amend his Complaint to state claims for
violation of Title VII and § 659A.030, and Plaintiff has failed
to do so.

Accordingly, the Court grants Defendant’s Motion to

Dismiss Plaintiff’s claims brought pursuant to Title VII and
§ 659A.030(f)(1) and dismisses those claims with prejudice.

13 - OPINION AND ORDER

II.

Plaintiff’s Whistleblower Claim
As noted, Plaintiff states in his Amended Response to

Defendant’s Motion to Dismiss that he intended to assert claims
for violation of § 659A.233 and § 659A.199 based on the facts
alleged in his Fourth Amended Complaint.
A.

Plaintiff’s Claim for Violation of § 659A.233
Oregon Revised Statutes § 659A.233 provides:
It is an unlawful employment practice for an
employer to discharge . . . an employee. . . for
the reason that the employee has in good faith
reported possible violations of ORS chapter 441 or
of ORS 443.400 to 443.455 or has testified in good
faith at an unemployment compensation hearing or
other hearing conducted pursuant to ORS chapter
657.

Oregon Revised Statutes Chapter 441 relates to licensing and
supervision of health-care facilities.

Oregon Revised Statutes

§§ 443.400-443.455 relate to licensing and supervision of
residential-care facilities, adult foster homes, and hospice
programs.

Plaintiff does not allege any facts in his Fourth

Amended Complaint relating to health-care facilities,
residential-care facilities, adult foster homes, or hospice
programs.

Thus, Plaintiff does not allege he reported any

possible violation of any part of Chapters 441 or 443.

The

Court, therefore, concludes Plaintiff has not stated a claim for
violation of § 659A.233.

14 - OPINION AND ORDER

B.

Plaintiff’s Claim for Violation of Oregon Revised
Statutes § 659A.199
In his Fourth Amended Complaint Plaintiff does not

explicitly allege he is bringing a claim for violation of
§659A.199.

Nevertheless, the Supreme Court has made clear that a

pro se plaintiff's complaint “must be held to less stringent
standards than formal pleadings drafted by lawyers.”
551 U.S. at 94.

Erickson,

Thus, the Court must construe pro se filings

liberally.
Oregon Revised Statutes § 659A.199 provides:
It is an unlawful employment practice for an
employer to discharge. . . or retaliate against an
employee . . . for the reason that the employee
has in good faith reported information that the
employee believes is evidence of a violation of a
state or federal law, rule or regulation.
Plaintiff alleges in his Third Amended Complaint that
(1) he reported to “Jeff Bayliss (boss in laminating)” and a lift
driver that the sweeper batteries had not been changed “although
the green card sheet stated” they had been changed.

In his

Fourth Amended Complaint Plaintiff expands on that allegation and
alleges he “engaged in whistleblowing by attempting to report
other employees[‘] unlawful acts of theft of the industrial
sweeper batteries and the $1.5 million theft of the blower motor
that the sub-contractor was supposed to repair or replace and
never did.”

Pl.’s Fourth Am. Compl. at 12.

The Court construes

Plaintiff’s Fourth Amended Complaint liberally as required

15 - OPINION AND ORDER

together with the alleged supporting facts and concludes they are
sufficient to state a claim for violation of § 659A.199.
Accordingly, this matter will proceed only as to
Plaintiff’s claim for violation of § 659A.199.

CONCLUSION
For these reasons, the Court GRANTS Defendant’s Federal Rule
of Civil Procedure 12(b)(1) and 12(b)(6) Motion (#28) to Dismiss
and DISMISSES with prejudice Plaintiff’s claims for violation of
Title VII and Oregon Revised Statutes § 659A.030(1)(f).
Accordingly, this matter will proceed only as to Plaintiff’s
claim for violation of § 659A.199 as set out in this Opinion and
Order.
The Court DIRECTS Defendant to file no later than
February 14, 2018, an Answer addressing Plaintiff’s claim for
violation of § 659A.199.

The Court DIRECTS the parties to confer

and to submit no later than February 28, 2018, a jointly proposed
case-management plan which the Court will then review.
IT IS SO ORDERED.
DATED this 30th day of January, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

16 - OPINION AND ORDER