Strek v. The Humane Society of The United States

Filing 13

ORDER: Granting Defendant's Motion to Dismiss 5 . Plaintiff's OSHA whistle blowing claim is dismissed. Signed on 10-14/12 by U.S. District Judge Michael R. Hogan. (sln)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KATHLEEN STARK,
No. 6:12-cv-1610-HO

Plaintiff,

ORDER

v.

THE HUMANE SOCIETY OF THE UNITED
STATES,
Defendant.

Plaintiff filed this action in the Circuit Court of Oregon for
the

County of

discrimination

Douglas
based

on August
on

whistle

2,

2011,

blowing

asserting
and

claims

disability.

of
On

September 7, 2012, defendant removed the action to this court and
On September 14,

2012,

filed a motion to dismiss or for summary

judgment.
Defendant

asserts

that

plaintiff's

whistle

blowing

claim

related to contact to the Oregon Occupational Health and Safety
1 - ORDER

Administration (OSHA) is time-barred.
to the motion.

However,

Plaintiff has not responded

based on the complaint and matters of

public record, of which this court may appropriately take judicial
notice, the motion is well-taken.
Plaintiff

alleges,

for

her

first

claim

for

relief,

that

defendant's decision to terminate her employment was substantially
motivated by her contact with OSHA regarding hazardous working
conditions.

Plaintiff similarly alleges a whistle blower claim

based on contacts she made to the Oregon Department of Agriculture
(ODA)

to allegedly bring a

facility operated by defendant into

compliance with the Clean Water Act.

Defendant's motion targets

the OSHA portion of plaintiff's whistle blower claim.
Plaintiff initiated administrative proceedings with the Oregon
Bureau of Labor and Industry (BOLI).

BOLI divided the claim into

two claims separating the OSHA claim and the ODA claim.
takes

judicial

notice

of

BOLI's

complaint

The court

dismissal

memos

respecting each claim. 1
On December 12, 2011, BOLI issued its decision dismissing the
OSHA complaint.

Along with that decision, BOLI informed plaintiff

that
[e]ven though the civil rights division has closed this
case, the Oregon Revised Statutes gives you the right to
file a suit in a state circuit court based on allegations

1

Because the BOLI documents are matters of public record
appropriately considered on a motion to dismiss, the court need not
convert the motion to one for summary judgment.
2 - ORDER

in this complaint. Pursuant to ORS 659A.880, this action
must be commenced within 90 calendar days from [December
12, 2011]. After 90 calendar days ... the right to file
in circuit court is lost.
BOLI letter of December 12, 2011, to Kathleen Strek (attached as
Exhibit B at p. 6 of the Declaration of Karla Grossenbacher (#7)).
Because plaintiff chose to file a complaint with BOLI pursuant
to ORS
of ORS

§

859A.820(2) asserting a whistle blower claim in violation
659A.199,

pursuant to ORS

§

BOLI was
659A.880.

required to

issue the

90 day notice

Accordingly, plaintiff was required to

bring her OSHA whistle blowing claim within 90 days of December 12,
2011.

ORS

§

659A.875(2).

Plaintiff initiated this action in state court on August 2,
2012.

Therefore, plaintiff failed to timely file this action with

respect to her OSHA claim.

Accordingly, plaintiff's OSHA whistle

blowing claim is dismissed.

CONCLUSION
For the reasons stated above,

defendant's motion to dismiss

(#5) is granted.

DATED this

3 - ORDER

t)f'~

day of October, 2012.