Sims v. Salem Health Hospitals and Clinics
ORDER: Plaintiff's Motion to correct docket 8 is granted in part. The court docket shall be corrected to reflect the complaint filing date of March 13, 2017. Defendant's Motion to Dismiss 5 is granted in part. Signed on 7/7/2017 by Judge Michael J. McShane. (cp) Modified on 6/7/2017 to correct bolding of text (cp).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Civ. No. 6:17-cv-00404-MC
OPINION AND ORDER
SALEM HEALTH HOSPITALS AND
Plaintiff Claudia Sims is a registered nurse who worked for defendant Salem Health in
various positions from January 3, 2011 until her discharge on May 21, 2015. Compl. ¶ 5-6.
Plaintiff alleges that the reasons provided by Salem Health for her discharge were a pretext to
justify disparate racial treatment. Compl. ¶¶ 8-12. She alleges two claims in her complaint: (1)
Title VII race discrimination under federal law, 42 U.S.C. §§ 2000e, et seq., and (2) state race
discrimination under OR. REV. STAT. § 659A.030(a) and (b).
1 – OPINION AND ORDER
Defendant moves for dismissal of Plaintiff’s Complaint pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6). Because plaintiff’s federal claim is time barred, defendant’s motion (ECF
No. 5) is GRANTED in part. Because plaintiff has provided sufficient evidence in the record to
support the contention that the federal court’s electronic filing system failed to accept her
complaint on the day it was submitted, Plaintiff’s Motion to Correct Docket (ECF No. 8) is
GRANTED in part.
Plaintiff’s employment was terminated on March 21, 2015. Compl. ¶ 6.Plaintiff filed a
complaint with the state’s Bureau of Labor and Industries (BOLI). By letter dated December 12,
2016, BOLI found insufficient evidence to continue their investigation and provided a NOTICE
OF RIGHT TO FILE A CIVIL SUIT. Decl. Reeves Ex. D, ECF No. 6. The BOLI letter correctly
instructed Plaintiff that she had 90-days to file suit from the date of the letter.
The court docket reads that this case was filed on March 13, 2017. The complaint was not
uploaded into the electronic filing system until March 15, 2017, when the court clerk contacted
the Plaintiff’s attorney’s office and informed them that the complaint had not been received with
the case filing.
STANDARD OF REVIEW
I. Motion to Dismiss pursuant to Rule 12(b)(1)
This Court must dismiss a claim if it lacks subject matter jurisdiction. Fed. R. Civ. P.
12(b)(1). The party invoking federal jurisdiction bears the burden of establishing that subject
matter jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). First, the
plaintiff must prove that he has suffered an injury in fact, which is a concrete and particularized
invasion of a legally protected interest. Id. at 560. This injury must be actual or imminent, not
2 – OPINION AND ORDER
conjectural or hypothetical. Id. Second, there must be a causal connection, meaning the injury
must be fairly traceable to the conduct cited in the Complaint. Id. And third, there must be
redressability, or a likelihood that a favorable decision will redress the injury. Id. at 561.
II. Motion to Dismiss pursuant to Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient
factual matter that “state[s] a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual allegations
allow the court to infer the defendant’s liability based on the alleged conduct. Ashcroft v. Iqbal,
556 U.S. 662, 663 (2009). The factual allegations must present more than “the mere possibility
of misconduct.” Id. at 678.
While considering a motion to dismiss, the Court must accept all allegations of material
fact as true and construe them in the light most favorable to the non-movant. Burgert v. Lokelani
Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). However, the Court is “not
bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain,
478 U.S. 265, 286 (1986). If the complaint is dismissed, leave to amend should be granted unless
the court “determines that the pleading could not possibly be cured by the allegation of other
facts.” Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (citations and internal quotation
I. Title VII Claim is time-barred
A plaintiff must file a timely charge of discrimination with the EEOC as a prerequisite to
bringing an action under Title VII. 42 U.S.C. § 2000e-5(e)(1); Grove City Veterinary Serv. LLC
v. Charter Practices Int’l LLC, No. 3:13-cv-02276-AC, 2014 WL 3371918 at *2 (D. Or. July 9,
3 – OPINION AND ORDER
2014). Where a plaintiff fails to timely file an EEOC charge, their judicial claims must be
dismissed. Ariz. ex rel Horne v. Geo Group, Inc., 816 F.3d 1189, 1202 (9th Cir. 2016) (“An
individual’s failure to file a charge with the agency within [the] time frame [set out in § 2000e–
5(e)(1)] will usually operate to bar that person from bringing a lawsuit for failure to exhaust their
administrative remedies.”). The timeline for filing a charge with EEOC is 180 days from the day
the allegedly discrimination took place. The 180-day filing deadline is extended to 300 days if a
state or local agency enforces a law that prohibits employment discrimination on the same basis.
42 U.S.C. § 2000e-5(e)(1).
Plaintiff concedes that Ms. Sims did not initiate a BOLI filing within 300 days of the
alleged discriminatory conduct, but filed with BOLI on May 12, 2016, more than 300 days after
her employment had ended. Def. Resp. 1-2, ECF No. 7; Decl. Reeves Ex. C, ECF No. 6. Because
Plaintiff did not exhaust her administrative remedies within the statutory timeline, Plaintiff’s first
claim for relief is dismissed with prejudice.
II. Plaintiff’s Motion to Correct Docket
Plaintiff moves the court for an order correcting the docket entry to reflect that the
complaint was filed on March 13, 2017. Pl.’s Mot., ECF No. 8. The court docket currently
reflects that the complaint was filed on March 15, 2017.
Plaintiff’s attorney asserts that his office electronically filed the complaint on March 13,
2017. Tamie Sanderson, an assistant to Plaintiff’s attorney, submitted a declaration that on
March 13 she started the electronic filing process. Decl. Sanderson 1-2, ECF No. 9. In her
declaration she states that she did, in fact, upload the complaint as part of the filing process on
that day. Specifically, she states that “[I] distinctly remember uploading the complaint and
reading the notification that the Summons and Civil Cover Sheet had to be attachments.”
4 – OPINION AND ORDER
I have no reason on this record to doubt the declaration of Ms. Sanderson. Her
declaration is supported by the fact that the credit card payment that would typically accompany
such a filing was processed on March 13 as shown by the credit card receipt. Decl. Sanderson
Ex. 1, ECF No. 9. It is also clear that the court assigned this litigation a case number on March
On March 15, 2017, the court clerk contacted Ms. Sanderson informing her that the
March 13, 2017 filing contained a ‘shell’ in that the complaint was not attached. Decl. Sanderson
1-2, ECF No. 9. Ms. Sanderson then re-filed the complaint. Id.
At my request, the court’s Operations Support Specialist reviewed the transaction history
report for this case and confirmed that the ‘shell’ of the case was opened on March 13, 2017
using the attorney’s login. When a complaint is filed, the person must first go through pay.gov to
the pay the filing fee. Ms. Sanderson’s declaration and credit card receipt show payment was
made on March 13, 2017.
On the record before us I find that the civil action was commenced and Plaintiff’s
complaint was filed on March 13, 2017, and but for some unknown computer or system error,
the complaint was not received. Plaintiff’s motion to correct docket is GRANTED. The docket
shall be corrected to reflect that the complaint was filed March 13, 2017. 1
III. Supplemental Jurisdiction
The remaining claim in this suit is for state race discrimination under OR. REV. STAT. §
659A.030(a) and (b). Because there is no longer a federal claim, this Court lacks original
jurisdiction. Without original jurisdiction, this court cannot exercise supplemental jurisdiction.
See 28 U.S.C. § 1367(a); Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th
Whether the 90th day under ORS § 659A.875 lands on Sunday, March 12 or on Monday, March
13, 2017 is unclear. The upshot to the fact that March 12 is a Sunday is even more unclear. The
parties have not asked this court to consider these issues, and so I happily abstain.
5 – OPINION AND ORDER
Cir. 2001). Because this court lacks jurisdiction, Plaintiff’s claim for state race discrimination is
dismissed without prejudice.
For these reasons, Plaintiff’s motion to correct docket (ECF No. 8) is GRANTED in part.
The court docket shall be corrected to reflect the complaint filing date of March 13, 2017.
Defendant’s motion to dismiss (ECF No. 5) is GRANTED in part. Plaintiff’s First Claim
for Relief: federal race discrimination is dismissed with prejudice. Plaintiff’s Second Claim for
Relief: state race discrimination is dismissed without prejudice for lack of federal jurisdiction.
IT IS SO ORDERED.
Dated this 7th day of June, 2017.
___/s/Michael J. McShane_____
Michael J. McShane
United States District Judge
6 – OPINION AND ORDER
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