Zavala v. Curtright et al

Filing 9

ORDER: Defendants' Motion to Dismiss 5 is granted in part and denied in part as stated in the order. Plaintiff shall submit an amended complaint within 30 days of the date of this order. Signed on 11/9/12 by Chief Judge Ann L. Aiken. (sln)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

TRINIDAD ZAVALA,
Plaintiff,

No. 6:12-cv-1488-AA
OPINION AND ORDER

v.

WILLIAM AMES CURTRIGHT, AMES
RESEARCH LABORATORIES,
Defendants.

AIKEN, Chief Judge:
Plaintiff

brings

this

action

asserting

claims

for

unpaid

wages, forced labor, and racial and national origin discrimination.

ALLEGATIONS
Plaintiff alleges as follows:
Defendant

William

1 - OPINION AND ORDER

Ames

Curtright

owns

Ames

Research

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Laboratories and Curtright uses the business and its assets to pay
for personal care and service for his family.
On October 1,

2005,

defendant Curtright hired plaintiff to

work at Ames Research Labs.

Curtright terminated plaintiff in 2006

because Curtright worried of the effect of employing an illegal
alien on Curtright's campaign for governor.

After Curtright lost

his campaign in September of 2006, he rehired plaintiff.
Also in September of 2006, Curtright hired plaintiff's wife,
Monica Garcia, to clean Curtright's home, properties and factory.
In

2007,

Curtright

asked

Garcia

to

care

for

his

mother,

Ms.

Theiman, who suffers from Alzheimer's disease.
In April of 2008, Theiman's disease progressed to the point of
necessitating round-the-clock care.
an

independent

care

Curtright placed his mother ln
However,

facility.

Theiman's

Alzheimer's

required

additional

services.

Accordingly,

Curtright,

the

progression

expense

for

of
care

under threat of deportation,

required plaintiff and his family to care for Theiman in their
home.
Plaintiff worked eight hours per day at Ames Research and then
5-6 hours in the evening assisting in the care of Theiman.

When

plaintiff

have

complained,

Curtright

responded

that

he

would

plaintiff deported if he did not comply.
Curtright treated plaintiff differently than other employees
at the lab.

Curtright made discriminatory comments about plaintiff

2 - OPINION AND ORDER

in front of other employees including comments about plaintiff's
method of entry into the United States.

Defendants failed to pay

plaintiff the minimum wage of $8.40 per hour under Oregon law.

DISCUSSION
Plaintiff's wife, Monica Garcia, has filed her own complaint
against Curtright, Ames Research and also against Ames Properties,
LLC.

Garcia v.

Curtright,

dismissed Garcia's

Civil No.

claim of

6:11-6407.

The court has

Fair Labor Standards Act violation

because her complaint, on its face, demonstrates that she is exempt
from

overtime

pay as

a

care

giver.

The

court

also

dismissed

Garcia's claim of discrimination under 42 U.S.C. § 1981 because she
provided no factual allegations to support threats based on race or
national origin.

The court did, however, allow her claim of forced

labor to proceed.
Plaintiff here asserts that defendants violated the Fair Labor
Standards Act

(FLSA), 29 U.S.C. §§ 206 and 207, by failing to pay

the minimum wage and overtime related to his time providing care
taking

duties

in

the

evening. 1

Plaintiff

contends

he

is

owed

$78,624 in unpaid wages and an equal amount as liquidated damages
under the FLSA.

1

Plaintiff alleges that because he spent more than 20% of his
time performing tasks unrelated to the care of Ms. Theiman, the
exemption for care giving duties at 29 U.S.C. § 213(a) (15) does not
apply under 29 C.F.R. § 552.6.
3 - OPINION AND ORDER

Plaintiff also alleges that defendants, by use of threats of
harm and threatened abuse of the

legal process,

forced him to

provide care giving services for Curtright's mother in violation of
18 U.S.C.

§

1589.

under 18 U.S.C.

A civil remedy for forced labor is provided for
1595, and plaintiff seeks $78,624 for the alleged

§

forced labor.
Plaintiff

alleges

that

defendants

engaged

in

unlawful

employment practices by discriminating against him because of his
Mexican
U.S.C.
$50,000

nationality
§

2000e-2.
in

and

immigration

status

in

violation

of

42

Plaintiff seeks $78,624 in economic damages and

non-economic

damages

for

this

alleged

violation.

Plaintiff similarly alleges discrimination under Or. Rev. Stat.

§

659A. 030 (1).
Defendants move to dismiss all claims. 2

2

Defendants argue that plaintiff's response to the motion must
be disregarded as untimely.
Defendants served the motion through
electronic means via CM/ECF on October 1, 2012.
Plaintiff
responded on October 18, 2012. Under Local Rule 7-1(e) (1), a party
must respond within 14 days to a motion to dismiss after service.
Under Fed. R. Civ. P. 6(a), all days except the day of service must
be counted when computing the time period under the local rules.
However, under Fed. R. Civ. P. 6(d), when service is made, among
other methods, via electronic means, three days are added after the
period would otherwise expire under Rule 6(a). Accordingly, with
a service date via electronic means made on October 1, 2012, the
due date for a response is October 18, 2012. Therefore, plaintiff
timely responded and even if he had not, defendants suffered no
prejudice and the court would still consider the response.
4 - OPINION AND ORDER

b..:_

Identity
Defendants first

contend that plaintiff's forced labor and

discrimination claims must

be dismissed because

failure to provide his true identity.
support dismissal as a

of plaintiff's

While there is authority to

sanction for pursuing a cause of action

under a fictitious identity, see, e.g., Zocaras v. Castro, 465 F.3d
479 (11th Cir. 2006), there is insufficient reason to believe that
plaintiff lS proceeding under a

false

identity in this case to

merit such a sanction at this stage.
In Zocaras, plaintiff filed more than thirty pleadings from
the case's inception to trial.

At trial, plaintiff conceded that

he had not filed and proceeded in the case under his true name.
Here, defendant argues that plaintiff presented falsified records
demonstrating his citizenship status upon applying for a job with
Ames Research Labs.

In particular, defendants note that plaintiff

presented a social security card and driver's license with the name
Trinidad

Zavala

Guerrero.

Plaintiff

responds

that

the

false

documents relating to his citizenship status do not show his name
is falsified.

Plaintiff asserts that he is proceeding under his

true name ln this action and defendants concede that they don't
know plaintiff's name to be false.

3

3

To the extent defendants seek to compel plaintiff to provide
proof of identity, it is inappropriate to combine a discovery
request with a separate motion to dismiss. The court expresses no
opinion on the merits of a potential motion to compel or any
resulting sanction for failure to comply if such motion is granted.
5 - OPINION AND ORDER

1

Claim Preclusion
Defendants

argue

that

plaintiff is

barred from litigating

entitlement to overtime related to his alleged work as a care giver
for Ms. Theiman.
Claim preclusion prohibits an action on any claims that were
raised or could have been raised in a prior action when there is:
(1) an identity of claims;

(2) a final judgment on the merits; and

(3) identity or privity between parties." Stewart v. U.S. Bancorp,
297 F.3d 953,

956 (9th Cir.2002).

Defendants base this portion of their motion on the fact that
this

court

has

already

determined

that

his

wife's

identical

services as a care giver are exempt from the FLSA's minimum wage
and overtime provisions under 29 U.S.C.
court

dismissed

Monica

Garcia's

213 (a) (15).

§

FLSA

claim

However, the

because

it

was

implausible, given her allegation that she cared for Ms. Theiman in
j

her

own

home

24

hours

a

day,

that

she

could

demonstrate

she

performed more than 20% of her time on other services for defendant

I

Curtright.

Plaintiff, in this case, alleges that he worked eight

!

hours per day at Ames Research and then 5-6 hours in the evening

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assisting in the care of Theiman.

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cause of action,

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In determining whether successive claims constitute the same
courts ccnsider

(1)

whether rights or interests

established in the prior judgment would be destroyed or impaired by

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prosecution of the second action;

6 - OPINION AND ORDER

( 2)

whether substantially the

same evidence is presented in the two actions;

(3) whether the two

suits involve infringement of the same right; and (4) whether the
two suits arise out of the same transactional nucleus of facts.
Int'l Union of Operating Engineers-Employers Const. Indus. Pension,
Welfare and Training Trust Funds v. Karr, 994 F.2d 1426, 1429 (9th
Cir. 1993).

Here, the alleged facts are sufficiently dissimilar so

as to prevent application of the doctrine of claim preclusion.
Accordingly, defendants motion to dismiss plaintiff's FLSA claim,
in its entirety on this basis, is denied.

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Exemption of Care Giver Services Alone
Regardless

of

whether

plaintiff

provide care giver services for Ms.

was

actually

Theiman,

employed

to

such services are

exempt from FLSA requirements.
The overtime and minimum wage provisions of the FLSA do not
apply

to

"employment

individuals who
for themselves."

to

provide

companionship

(because of age or infirmity)

services

are unable to care

29 U.S.C. § 213(a) (15).

[T]he term companionship services shall mean those
services which provide fellowship, care, and protection
for a person who, because of advanced age or physical or
mental infirmity, cannot care for his or her own needs.
Such services may include household work related to the
care of the aged or infirm person such as meal
preparation, bed making, washing of clothes, and other
similar services. They may also include the performance
of general household work: Provided, however, That such
work is incidental, i.e., does not exceed 20 percent of
the total weekly hours worked.

7 - OPINION AND ORDER

for

29 C.F.R.

§

552.6.

Plaintiff alleges that he worked 5-6 hours

ln the evening

assisting in the care of Theiman ln his own home.

No plausible

reading of the complaint could lead to a finding that plaintiff
provided incidental household work related his alleged care of
Theiman.

Accordingly,

to

the

extent

plaintiff

alleges

FLSA

violations related to this work, the claim is dismissed.
Because it is not clear if the complaint alleges failure to
pay minimum wages or overtime related to plaintiff's work at the
lab,

the

motion

to

without prejudice.

dismiss

plaintiff's

FLSA

claim

is

granted

Plaintiff may amend his complaint to allege

FLSA violations, if any, related to that work.

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Failure to State A claim
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Defendant Curtright

For purposes of the forced labor and discrimination claims,
plaintiff alleges that he was employed by both defendant Curtright
and Ames

Research Labs.

It

lS

not

implausible that plaintiff

worked for Ames Labs with respect to factory work and Curtright
with

respect

to

the

care

of Ms.

Theiman.

Issues

of

whether

plaintiff was actually employed by either defendant with respect to
the latter job duties,

or whether Garcia alone was employed for

such duties, are not appropriately resolved on a motion to dismiss.
However,

the

complaint

8 - OPINION AND ORDER

does

not

plausibly

state

a

claim

against Curtright individually as an employer with respect to the
lab work.

Plaintiff alleges that Ames Research Labs employed him

for that job and that Ames Research Labs is a business in the state
of Oregon with more than fifteen employees. 4

At best, plaintiff

alleges defendant Curtright is an employer only for purposes of the
care

giver

duties.

The

allegations

only

show

that

Curtright

employed two people for purposes of providing care to his mother.
As such, Curtright is not an "employer" for purposes of Title VII
liability.
employees).

42

U.S.C.

§

2000e(b)

(requires

fifteen

or

more

Moreover, Curtright cannot be individually liable for

any discriminatory

conduct

allegedly

suffered

at

the

lab.

See

Miller v. Maxwell's International Inc., 991 F.2d 583 (9th Cir.1993)
(employees cannot be held liable in their individual capacities
under Title VII).

Accordingly, the Title VII discrimination claim

is dismissed against defendant Curtright. 5

4

Plaintiff alleges that Ames Research Labs is incorporated,
but that Curtright uses the business and its assets as his own by
paying for personal care and services to Curtright and his family
members. This allegation is insufficient to plausibly demonstrate
Curtright, individually, is the employer for purposes of the lab
work.
5

The discrimination claim under Oregon law does not include a
limitation on the number of employees and therefore the lack of
fifteen employees with respect to Curtright as an employer does not
foreclose the state law claim.
Or. Rev. St. 659A.001(4) (one or
more employees).
9 - OPINION AND ORDER

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Discrimination Claims

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Defendants next contend that plaintiff could not have been
discriminated against because he is barred from even being employed
given

the

allegation

that

he

is

an

illegal

alien.

Moreover,

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defendants argue that plaintiff's illegal status in this county is
not a protected class.
discrimination
refuses

to

based

condone

However,
on

the complaint plausibly alleges

national

origin.

discriminatory

conduct

Moreover,
of

an

the

court

employer

who

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allegedly knowingly hired an illegal alien because the employer now

1

asserts that an illegal alien is not entitled to work at all.

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Necessary Party
Defendants

plaintiff

with

assert
respect

Defendants

are

the

care

Garcia
giver

actually
services

employed
and

that,

not

precluded

from

asserting

they did

not

employ plaintiff for the care giver services in the absence of

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this case.

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to

Monica

therefore, she must be joined as a necessary party to the claim.

Garcia as a party.

i

that

There is no risk of an inability to grant

complete relief or a risk of inconsistent rulings/obligations in
If the facts demonstrate, after appropriate discovery,

that this action should be consolidated with Garcia v. Curtright,
Civil No. 6:11-6407, defendants may seek to do so at an appropriate
stage in the proceedings.

10 - OPINION AND ORDER

CONCLUSION
For the reasons stated above,
( #5)

is

granted

in

part

and

defendants' motion to dismiss

denied

in

part

as

noted

above.

Plaintiff shall submit an amended complaint within thirty days of
the date of this order.
IT IS SO ORDERED.
DATED this

of November, 2012.

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Ann Aiken
United States District Judge

11 - OPINION AND ORDER