Andrade v. Schnitzer Steel Industries, Inc. et al

Filing 20

OPINION & ORDER: Although the Court will not string together Plaintiff's allegations into a well-pleaded complaint on his behalf, the Court cannot say that the presented allegations are incapable of being developed into a cognizable comp laint and leave is freely given. Fed. R. Civ. P. 15(a)(2). Thus, the Court GRANTS Defendants' motion to dismiss 11 and grants Plaintiff leave to amend. If Plaintiff chooses to file an second amended complaint, he must do so within 30 days of this opinion and order. The Court cautions, however, that it will be unlikely to allow further amendment and that, should Plaintiff choose to amend, he should carefully draft his amended complaint to ensure his claims are clearly articulated and well supported. Signed on 11/16/2021 by Judge Marco A. Hernandez. (jp)

Case 3:21-cv-00860-HZ

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ROBERT ANDRADE,
Plaintiff,
v.
SCHNITZER STEEL INDUSTRIES, INC.,
an Oregon corporation, CASCADE STEEL
ROLLING MILLS, INC., an Oregon
corporation, and DIANA ZOLOTKO, an
individual,
Defendants.

Carl Lee Post
John D. Burgess
Daniel J. Snyder
Law Offices of Daniel Snyder
1000 S.W. Broadway
Suite 2400
Portland, OR 97205
Attorneys for Plaintiff

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No. 3:21-cv-00860
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Edwin A. Harnden
Kyle T. Abraham
Chris M. Morgan
Barran Liebman LLP
601 S.W. 2nd Ave.
Suite 2300
Portland, OR 97204
Attorneys for Defendants
HERNÁNDEZ, District Judge:
Plaintiff Robert Andrade alleges that Defendants Schnitzer Steel Industries, Inc., Cascade
Steel Rolling Mills, Inc., and Diana Zolotko violated his rights under the Americans with
Disabilities Act and Oregon state law. Defendants seek to dismiss his claims as untimely and for
failing to state a claim under Federal Rule of Civil Procedure 12(b)(6).

BACKGROUND
Plaintiff has disabilities related to his service in the United States Army. First Amended
Complaint ¶¶ 14, 23, ECF 10. A veteran of both Iraq and Afghanistan, Plaintiff suffered repeated
violent trauma and a brain injury. Am. Compl. ¶¶ 14, 23.
Plaintiff started working for Defendant Cascade Steel in 2006 as a utility worker. Am.
Compl. ¶ 15. Between his hiring in 2006 and his promotion to yard foreman in 2013, Plaintiff
repeatedly informed his supervisor and several HR representatives of his disabilities. Am.
Compl. ¶¶ 16–18. In 2015, Plaintiff requested an accommodation for his disabilities, but no
follow-up meeting was scheduled. Am. Compl. ¶ 20.
In 2018, Defendant Zolotko was hired as Defendant Cascade Steel’s HR director. Am.
Compl. ¶ 21. Not long after, another HR representative told Plaintiff that Defendant Zolotko
“hate[d]” Plaintiff and that she would “get” him. Am. Compl. ¶ 22. In summer 2019, Plaintiff

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met with Defendant Zolotko to explain his disabilities to her and “improve her view of him”;
according to Plaintiff, he was unable to discuss accommodations with Zolotko bec ause she began
screaming at him and cut him off. Am. Compl. ¶ 23. Sometime later, Plaintiff made an internal
complaint regarding Defendant Zolotko’s behavior. See Am. Compl. ¶ 24–27. It went
nowhere—despite Plaintiff’s attempt to escalate the issue to senior company leadership. See Am.
Compl. ¶ 24–27.
On December 19, 2019, Plaintiff attended a holiday meeting where he was gifted a
summer sausage. Am. Compl. ¶ 28. After that meeting, Plaintiff alleges that Zolotko solicited
information from the meeting’s attendees via a questionnaire—a questionnaire that focused on
Plaintiff’s conduct at the meeting but was not sent to Plaintiff himself. Am. Compl. ¶ 29.
Just over a month later, on January 30, 2020, a fellow foreman attempted to start a fight
with Plaintiff by mocking Plaintiff and encroaching on Plaintiff’s personal space. Am. Compl. ¶
30. That same day, Defendant Zolotko summoned Plaintiff into her office and inquired about the
altercation. Am. Compl. ¶ 31. Plaintiff alleges that after he explained the incident Zolotko
changed the subject, focusing instead on Plaintiff’s conduct at the holiday meeting. Am. Compl.
¶ 31. Zolotko accused Plaintiff of “passing around sexually explicit texts to [his] wife . . . and . . .
put[ting] a summer sausage to [his] crotch.” Am. Compl. ¶ 31 Plaintiff denied the accusation;
Defendant Zolotko fired him anyway. Am. Compl. ¶ 31.
In March 2020, Plaintiff was served with a stalking order obtained by Defendant Zolotko.
Am. Compl. ¶ 34. He objected and requested a hearing. Am. Compl. ¶ 34. At the hearing, the
circuit court set aside the stalking order, disregarding Zolotko’s allegations that Plaintiff left her
a threating voicemail and had her f ollowed. Am. Compl. ¶ 36.

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Meanwhile, around the same time, Plaintiff attended an administrative hearing regarding
unemployment benefits. Am. Compl. ¶ 35. The administrative law judge found that he was not
terminated for misconduct despite Defendant Zolotko’s testimony to the contrary. Am. Compl. ¶
35.
On September 3, 2020, Plaintiff filed an administrative complaint with the Oregon
Bureau of Labor and Industries (“BOLI”). Am. Compl. ¶ 4.1 BOLI subsequently filed a charge
with the U.S. Equal Opportunity Commission (“EEOC’). Am. Compl. ¶ 4. In April 2021, BOLI
and the EEOC issued Plaintiff notices of his right to file a civil suit. A few months later, on June
7, Plaintiff filed his complaint with this Court. Defendants moved to dismiss; Plaintiff amended.
His Amended Complaint alleges six disability-related claims under the ADA and Oregon state
law and one claim for abuse of process under Oregon law. Defendants again moved to dismiss,
arguing that Plaintiffs claims should be dismissed as untimely and for failing to state a claim
under FRCP 12(b)(6).

STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency
of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When evaluating the
sufficiency of a complaint’s factual allegations, the court must accept all material facts alleged in
the complaint as true and construe them in the light most favorable to the non -moving party.
Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). A motion to dismiss under
Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of his “entitlement to relief”

1The

Amended Complaint alleges an incorrect filing date, December 23, 2020. In their
briefing, the parties agree that correct date is September 3, 2020. Def.’s Mot. to Dismiss 5; Pl.’s
Resp. 5–6.
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with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations
must be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact)[.]” Id. (citations and footnote
omitted).
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) (internal quotation marks omitted). A plaintiff must “plead[] factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. In other words, a complaint must state a plausible claim for relief and contain “wellpleaded facts” that “permit the court to infer more than the mere possibility of misconduct[.]” Id.
at 679.

DISCUSSION
Even viewing the well-pleaded allegations in the light most favorable to Plaintiff, he fails
to plausibly allege any viable claims. His disability-discrimination claims, claims one through
six, fail because he fails to plausibly allege that any adverse action occurred on the basis of his
disabilities. Indeed, the Court struggled to discern the Defendants’ conduct that serves as the
basis for Plaintiff’s claims. For example, although he states that Defendants’ discrimination was
“based on Defendants’ disparate treatment, retaliation, a hostile work environment, and
termination of employment,” Plaintiff does not allege that non-disabled co-workers were treated
differently, that a discriminatory reason motivated Defendants’ actions, or that the Defendants
took certain adverse actions after he attempted to assert his rights. See, e.g., Pac. Shores Props.,

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LLC v. City of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013) (discussing disparate
treatment claims); T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 473 (9th
Cir. 2015) (discussing retaliation claims). Indeed, Plaintiff does not even plainly allege that
Defendants were aware he needed an accommodation and concedes that he never discussed
accommodations with Defendant Zolotko. Compl. ¶ 23; see also Dunlap v. Liberty Nat. Prod.,
Inc., 878 F.3d 794, 798 (9th Cir. 2017) (discussing failure to accommodate claims).
Instead, he alleges that he explained his disabilities to Zolotko “to improve her view of him.”
Compl. ¶ 23. Overall, the Amended Complaint recites the elements of various claims and other
legal conclusions with minimal well-pleaded factual allegations in support. See Kwan v.
SanMedica Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017) (explaining that mere legal conclusions are
not entitled to the assumption of truth). Put simply, it does not present a plausible claim for
relief.
Plaintiff’s failure to plausibly plead his claims presents a special problem here because
that failure prevents the Court from determining whether his claims are timely. “An individual
plaintiff must first file a timely EEOC complaint against the allegedly discriminatory party
before bringing an ADA suit in federal court.” Josephs v. Pac. Bell, 443 F.3d 1050, 1061 (9th
Cir. 2006). Because Plaintiff initiated his proceedings with BOLI, he had to file his
administrative complaint within 300 days of the alleged unlawful practice. See id.; see also 42
U.S.C. § 2000e-5(e)(1). The only adverse action Plaintiff alleged that appears to fall within that
timeframe is his termination—but Plaintiff does not plausibly connect his termination to his
disabilities.2 Instead, his allegations imply that Defendants fired him because they believed that

Court need not, and does not, definitively determine whether Plaintiff’s claims
are timely. If Plaintiff choses to amend his complaint, Defendants’ are free to renew their
argument that his claims are untimely.
2But the

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he acted inappropriately during the holiday meeting and because of his altercation with another
foreman. See Am. Compl. ¶ 31. Taking Plaintiff’s well-plead allegations as true, he fails to allege
that the real reason for his termination was his disability or another protected ground. Besides his
termination, if there are other unlawful actions that fall within the 300-day limit for ADA claims
or the one-year limit for his Oregon-law claim, the Amended Complaint does not plausibly
allege or identify them. Although the Court must draw all reasonable inferences in Plaintiff’s
favor, the Court is not required to “piece together a theory of liability from a string of
unrelated…assertions.” Valadez-Lopez v. Chertoff, 656 F.3d 851, 859 (9th Cir. 2011).
As for his final claim, abuse of process, Plaintiff fails to allege that Defendant Zoltoko’s
actions satisfy that claim’s requirements. His allegations here are especially conclusory and little
more than a threadbare recitation of the claim’s elements. See Am. Compl. ¶ 87–94. Plaintiff
does not allege that she had an ulterior purpose, unrelated to the process, in initiating the
proceeding. Pfaendler v. Bruce, 195 Or. App. 561, 572, 98 P.3d 1146, 1152 (2004) (requiring an
ulterior purpose). To the contrary, his allegations state that Zolotko testified she sought a stalking
order because she believed Plaintiff was having her followed—the quintessential, legitimate use
of the stalking-order process. Plaintiff’s failure to plead factual allegations supporting this
element prevents “the [C]ourt [from] draw[ing] a reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678.

CONCLUSION
Although the Court will not string together Plaintiff’s allegations into a well-pleaded
complaint on his behalf, the Court cannot say that the presented allegations are incapable of
being developed into a cognizable complaint and leave is freely given. Fed. R. Civ. P. 15(a)(2).

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Thus, the Court GRANTS Defendants’ motion to dismiss [11] and grants Plaintiff leave to
amend. If Plaintiff chooses to file an second amended complaint, he must do so within 30 days of
this opinion and order. The Court cautions, however, that it will be unlikely to allow further
amendment and that, should Plaintiff choose to amend, he should carefully draft his amended
complaint to ensure his claims are clearly articulated and well supported.

IT IS SO ORDERED.

DATED:_______________________.
November 16, 2021

______________________________
MARCO A. HERNÁNDEZ
United States District Judge

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