Simons v. Costco Wholesale Corporation
Filing
43
ORDER - The Court ADOPTS Magistrate Judge Beckerman's Findings and Recommendations, ECF 37 . Costco's Motion to Dismiss the SAC (ECF 29 ) is DENIED. Signed on 11/18/2019 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DMITRI SIMONS,
Plaintiff,
Case No. 3:18-cv-0755-SB
ORDER
v.
COSTCO WHOLESALE
CORPORATION,
Defendant.
Michael H. Simon, District Judge.
United States Magistrate Judge Stacie F. Beckerman issued Findings and
Recommendations on this case in July. ECF 37. Magistrate Judge Beckerman recommended that
defendant Costco Wholesale Corporation’s motion to dismiss Mr. Simons’ federal and state law
discrimination claims be DENIED. The Court ADOPTS the Findings and Recommendations for
the following reasons.
Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party files objections to a magistrate judge’s findings and recommendations,
“the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).
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For those portions of a magistrate judge’s findings and recommendations to which neither
party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474
U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate’s report to which no objections are filed.”); United
States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court
must review de novo magistrate judge’s findings and recommendations if objection is made, “but
not otherwise”). Although in the absence of objections no review is required, the Act “does not
preclude further review by the district judge[] sua sponte . . . under a de novo or any other
standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R.
Civ. P. 72(b) recommend that “[w]hen no timely objection is filed,” the Court review the
magistrate judge’s recommendations for “clear error on the face of the record.”
Costco timely filed objections, arguing that the Court should grant the motion to dismiss
because the Second Amended Complaint (“SAC”) does not pass muster under Rule 12(b)(6).
ECF 41 at 6. Costco spends five pages recapping the factual background, procedural history, and
legal standard relevant to the case. ECF 41 at 1-5. Costco then lodges two specific objections: (1)
Magistrate Judge Beckerman erred in finding that Mr. Simons adequately pleaded the similarity
of his situation to that of two Caucasian employees who Costco treated differently and (2)
Magistrate Judge Beckerman erred in finding that Mr. Simons adequately pleaded that Costco
treated him differently because of his race. ECF 41 at 6. Mr. Simons briefly responded to
Costco’s objections, but filed no objections of his own. ECF 42.
Both objections are meritless. “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.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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557 (2007)). The Court assumes that the “well-pleaded” facts in Mr. Simons’ complaint are true
in assessing Costco’s motion to dismiss. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992,
998 (9th Cir. 2010).
Costco states the law incorrectly in its first objection. Title VII does not require plaintiffs
to plead that they were treated differently from other employees who were similarly situated in
“all material respects.” ECF 41 at 6-7. Magistrate Judge Beckerman states the law correctly.
Title VII requires plaintiffs only to plead “sufficient facts to plausibly infer that [they were]
treated differently” from similarly situated employees. Barrett v. Kaiser Found. Health Plan of
the Nw., 2015 WL 4603436, at *4 (D. Or. July 30, 2015) (citing Johnson v. Riverside Healthcare
Sys., L.P., 534 F.3d 1116, 1122 (9th Cir. 2008)). Mr. Simons pleads such facts: his Caucasian
colleagues violated the same Costco policies, worked in the same city or warehouse as Mr.
Simons, and had the same supervisor as Mr. Simons. SAC ¶¶ 8-13. Costco demoted and
transferred Mr. Simons. His Caucasian colleagues suffered no such consequences. Id. From these
facts, the Court can plausibly infer that Mr. Simons was similarly situated to the two Caucasian
workers yet Costco treated him differently.1
“Determining whether a complaint states a plausible claim for relief . . . requires the
reviewing court to draw on its judicial experience and common sense.” Iqbal, U.S. 556 at 679.
Mr. Simons’ manager barely knew him but still demoted and fired him for the alleged violations.
The manager also told Costco management that Mr. Simons—the only Black manager or
supervisor in the warehouse— “looked too gangster.” SAC ¶ 14. Costco argues that this
comment is “not inherently tied to race” and thus that Mr. Simons does not plead that he was
Furthermore, “whether two employees are similarly situated is ordinarily a question of
fact,” and should be resolved on summary judgment at the earliest. Hawn v. Exec. Jet Mgmt., 615
F.3d 1151, 1157 (9th Cir. 2010).
1
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treated differently because of his race. Their objection runs counter to both common sense and
the Court’s own judicial experience. Title VII protects against “dog-whistle” racism, defined as
“the use of code words and themes which activate conscious or subconscious racist concepts and
frames.” Lloyd v. Holder, 2013 WL 6667531, at *9 (S.D.N.Y. Dec. 17, 2013); see, e.g., Lisa
Foderaro, He’s a Rhodes Scholar. The G.O.P. Keeps Calling Him a ‘Big-City Rapper,’ N.Y.
TIMES, Oct. 1, 2018, https://www.nytimes.com/2018/10/01/nyregion/antonio-delgadorapper.html (discussing advertisements referring to a Black congressional candidate running in a
predominantly Caucasian district as a “big-city rapper”). Costco blows the dog-whistle and
expects the Court to plug its ears. I will not.
For those portions of Magistrate Judge Beckerman’s Findings and Recommendations to
which neither party has objected, this Court follows the recommendation of the Advisory
Committee and reviews those matters for clear error on the face of the record. No such error is
apparent.
The Court ADOPTS Magistrate Judge Beckerman’s Findings and Recommendations.
ECF 37. Costco’s Motion to Dismiss the SAC (ECF 29) is DENIED.
IT IS SO ORDERED.
DATED this 18th day of November, 2019.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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