Bowman v. Lowes Home Centers, Llc

Motion to Dismiss for Failure to State a Claim .

D. Or.March 2, 2017

4831-2650-4260v.4 0086846-000055 Page 1 - DEFENDANT’S MOTION TO DISMISS DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax JENNA MOONEY, OSB #993249 jennamooney@dwt.com CHRISTIE S. TOTTEN, OSB #085890 christietotten@dwt.com DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 Telephone: (503) 241-2300 Facsimile: (503) 778-5299 Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT DISTRICT OF OREGON MEDFORD DIVISION GARY BOWMAN, an individual, PLAINTIFF, v. LOWES HOME CENTERS, LLC, a North Carolina company, DEFENDANT. Case No. 1:16-cv-02320-MC DEFENDANT’S MOTION TO DISMISS LOCAL RULE 7-1(A) CERTIFICATION STATEMENT Counsel for defendant Lowe’s Home Centers, LLC (“Lowe’s” or “Defendant”) conferred with counsel for Plaintiff Gary Bowman (“Plaintiff”) via telephone on March 1, 2016, as required by Local Rule 7-1(a), but the parties were unable to reach agreement on the subject matter of this motion. Plaintiff’s counsel requested one week to consider the grounds for this motion and to consider whether to amend the Complaint; accordingly, Defendant filed an Unopposed Motion for Extension of Time to extend the time to file this Motion to Dismiss to Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 1 of 17 4831-2650-4260v.4 0086846-000055 Page 2 - DEFENDANT’S MOTION TO DISMISS DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax March 9, 2016 but with that Motion for Extension of Time pending, files this Motion to Dismiss to timely meet the current March 2 due date. MOTION Defendant moves for an order dismissing Plaintiff’s Second Claim for Relief (“Age Discrimination - Disparate Impact) with prejudice because Plaintiff fails to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). Defendant submits the following legal memorandum in support of its motion. MEMORANDUM OF LAW I. INTRODUCTION This is an employment termination case. Plaintiff alleges three claims: (1) age discrimination - disparate treatment, (2) age discrimination - disparate impact and (3) whistleblower retaliation. Only the Second Claim for Relief is at issue in this motion. Plaintiff has not pleaded sufficient facts to state a claim for “disparate impact” discrimination and his claim should therefore be dismissed. II. BACKGROUND A. Plaintiff’s allegations in his Complaint. Plaintiff was a delivery driver for Defendant’s store in Medford, Oregon. Pl.’s Compl., ¶ 1.1 Defendant terminated his employment on October 8, 2015, “citing the fact that he had stopped by his house using the company truck as the reason for which his employment terminated.” Id., ¶ 9. Plaintiff was 64 years old upon termination. Id., ¶ 2. Plaintiff’s allegations fail to state a claim for relief based on a disparate impact theory. Reading the Complaint liberally, the only allegations that possibly relate to a disparate impact claim are: 1 Plaintiff’s Complaint contains duplicate numbering (paragraphs 1-3 under “Jurisdiction and Venue” and paragraphs 1- 37 beginning with “Facts”). The citations in this motion refer to Plaintiff’s numbered paragraphs beginning with “Facts” on page 3, unless otherwise stated. Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 2 of 17 4831-2650-4260v.4 0086846-000055 Page 3 - DEFENDANT’S MOTION TO DISMISS DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax “Defendants [sic] have recently terminated the employment of several other older workers for bogus reasons as they terminated Mr. Bowman’s employment for a reason for which they never warned him.” (Pl.’s Compl. ¶ 15) “Defendant has acted upon a policy which encourages discrimination against older workers in that they have systematically been getting rid of employees who have been with the company for more than ten years.” (Pl.’s Compl. ¶ 22) “Defendants’ [sic] policies are discriminatory against plaintiff.” (Pl.’s Compl. ¶ 23) III. LEGAL STANDARD To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain sufficient facts that “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (noting that “[f]actual allegations must be enough to raise a right to relief above the speculative level”); Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (a claim is plausible on its face when the supporting factual allegations allow the Court to infer the defendant's liability based on the alleged conduct). The factual allegations in the complaint must present more than “the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. Although detailed factual allegations are not required, the standard “demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation.” Iqbal, at 678. On a motion to dismiss, the Court must accept all factual allegations as true and construe the pleadings in the light most favorable to the nonmoving party. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2015). However, that “tenet…is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. In sum, the Court must first consider the factual allegations to determine whether Plaintiff has pleaded a plain statement of the grounds for relief. Fed. R. Civ. P. 8(a); Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678-679 (although Rule 8 provides for notice pleading “it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions”). If so, and the plaintiff has alleged more than legal conclusions for each element of the claim, then the Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 3 of 17 4831-2650-4260v.4 0086846-000055 Page 4 - DEFENDANT’S MOTION TO DISMISS DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax Court considers whether those pleaded facts state a plausible rather than merely possible claim. Twombly, 550 U.S. at 555-56; Iqbal, 556 U.S. at 678-79. IV. ARGUMENT A. Plaintiff’s Second Claim for Relief fails to state a claim upon which relief may be granted. Plaintiff appears to allege a state law claim for age discrimination under ORS 659A.030, not a federal claim under the Age Discrimination in Employment Act (ADEA). Pl.’s Compl. ¶¶ 21-26. Even if a disparate impact theory exists for age discrimination under ORS 659A.030,2 it is not sufficiently pleaded here to state a claim for relief. A disparate impact claim challenges “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another…” Smith v. City of Jackson, Miss., 544 U.S. 228, 239 (2005) (quoting Int’l Bd. Of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)). A prima facie case of disparate impact requires Plaintiff to show (1) “the occurrence of outwardly neutral employment practices” and (2) “a significantly adverse or disproportionate impact on persons of a particular [age] produced by the employer’s facially neutral acts or practices.” Pottenger, 329 F.3d 740, 749 (9th Cir. 2003) (affirming summary judgment for the employer on an ADEA claim). 1. Plaintiff’s Second Claim for Relief is time-barred. Plaintiff alleges that he was terminated on October 8, 2015. He filed his complaint in this action on December 14, 2016. A one-year statute of limitations applies: either a BOLI complaint or a civil action alleging an ORS 659A.030 violation must be filed within one year of the alleged unlawful employment practice. ORS 659A.875(1). If a BOLI complaint is timely 2 Oregon courts have discussed a disparate impact theory for an age discrimination claim under state law (see e.g. Christianson v. State, 239 Or App 451, 457-58 (2010)(mentioning disparate impact although it was not alleged in that case)) but Defendant finds no state court decision specifically holding that such a claim exists. Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 4 of 17 4831-2650-4260v.4 0086846-000055 Page 5 - DEFENDANT’S MOTION TO DISMISS DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax filed, the plaintiff may then commence a civil action within 90 days after a “90-day notice” is mailed to him by BOLI. ORS 659A.875(1)-(2). Plaintiff alleges that he timely filed an agency charge, received a 90-day letter from BOLI, and filed this legal action. Pl.’s Compl. ¶ 3 (“Jurisdictional and Venue”). To be timely, Plaintiff must have raised “the unlawful employment practice” in the BOLI proceeding. ORS 659A.875(1). However, Plaintiff did not assert a disparate impact theory in the BOLI proceeding. On a Rule 12(b)(6) motion to dismiss, the Court may consider documents properly subject to judicial notice or those referred to in the complaint that form the basis of Plaintiff’s claim; although Plaintiff’s agency charges were not an attached exhibit to the complaint, the Court may consider those documents on this motion because the timeliness of Plaintiff’s claims depends on those charges. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (in ruling on a Rule 12(b)(6) motion to dismiss, the Court may consider the allegations, exhibits attached to the complaint, matters properly subject to judicial notice, and documents “referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is unquestioned”) (internal citations omitted); see Stewart v. Rock Tenn CP, LLC, 2015 WL 1883910, *4-8 (D. Or. 2015) (not reported) (considering EEOC and BOLI Right to Sue Letters to determine the timeliness of plaintiff’s claims, and analyzing the Court’s ability to do so on a motion to dismiss). Plaintiff’s Complaint relies upon his BOLI “Claim”, which he specifically alleges in paragraph 3 of his Complaint and is therefore incorporated by reference. The BOLI complaints are also properly subject to judicial notice as public records. FRE 803(8); U.S. E.E.O.C. v. Global Horizons, Inc., 860 F. Supp. 2d 1172, 1193 n.5 (D. Haw. 2012) (taking judicial notice of an EEOC Charge of Discrimination). Thus, Plaintiff’s BOLI complaints may be considered without converting this motion to a motion for summary judgment. Swartz, 476 F.3d at 763. Defendant respectfully requests that this Court consider Plaintiff’s BOLI complaint and amended complaint, attached to this motion as Exhibit 1, either as referenced in the complaint or as public records subject to judicial notice. Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 5 of 17 4831-2650-4260v.4 0086846-000055 Page 6 - DEFENDANT’S MOTION TO DISMISS DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax Plaintiff filed an agency charge in December 2015 and an amended charge in February 2016. Ex. 1. The charges alleged age discrimination against him personally but do not refer to any facially-neutral policy or practice that disproportionately affects older workers. They do not refer to other older workers at all. Because the civil action does not “alleg[e] the same matters” as those alleged in the agency complaint, the one-year statute of limitations expired in October 2016 as to the disparate impact claim, and that claim is now time-barred. OAR 839-003- 0020(3). 2. Plaintiff does not plead facts supporting a disparate impact claim. a. Plaintiff has not alleged a specific challenged policy or practice in his Complaint. As to the first element of a disparate impact claim, Plaintiff does not allege any specific policy or practice at issue. Plaintiff must challenge “a specific business practice.” Pottenger, 329 F.3d at 749; see Moussouris v. Microsoft Corp., 2016 WL 4472930 *9 (W.D. Wa. March 7, 2016) (granting motion to dismiss a Title VII and state law gender discrimination claim3 based on disparate impact); see e.g. Worrell v. Colorado Comm. Bank, 2010 WL 2943487 (D. Colo. 2010) (not reported) (granting motion to dismiss a disparate impact age discrimination claim where the complaint did not identify a systematic practice that was facially neutral but discriminatory in effect). A conclusory allegation about some general or unknown policy is not sufficient to survive a motion to dismiss. See Smith v. City of Jackson, Miss., 544 U.S. 228, 232, 241 (2005) (affirming summary judgment and noting that “it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact.”); Twombly, 550 U.S. at 555-56 (the complaint must “give the defendant fair notice of what the…claim is and the grounds upon which it rests”) (omission in original); Subramaniam v. 3 The standard in a Title VII case is different than under the ADEA; a defendant may defend an employment practice by showing a “business necessity” under Title VII, but need only establish a “reasonable factor other than age” under the ADEA. Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 95-97 (2006). Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 6 of 17 4831-2650-4260v.4 0086846-000055 Page 7 - DEFENDANT’S MOTION TO DISMISS DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax Beal, 2013 WL 5462339, *9 (D. Or. 2013) (not reported) (applying the same disparate impact standard to housing and credit discrimination claims, and concluding that a general allegation about a relationship between two companies was insufficient to constitute notice of the specific business practice challenged). As pleaded, it is impossible to discern what employment practice is being challenged. At most, Plaintiff alleges that (1) “several other older workers” have been terminated “for bogus reasons” and (2) Defendant “acted upon a policy which encourages discrimination against older workers in that they have been systematically been getting rid of employees who have been with the company for more than ten years.” Pl.’s Compl. ¶¶ 15, 22. That does not provide any notice of what policy Plaintiff contests in this action. Plaintiff has not alleged facts showing that the claim is plausible rather than merely speculative. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678 (to survive a motion to dismiss, a complaint must contain “factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged”). Because Plaintiff has not alleged facts regarding the practice or policy at issue, his complaint fails to state claim for relief and the Second Claim for Relief should be dismissed. 3. Plaintiff has not alleged facts regarding a disproportionate impact on a protected class because of a challenged practice. Even if he could identify a specific business policy or practice, which he has not done, Plaintiff must further allege a disproportionate impact on persons of a certain age group, and must allege facts allowing an inference that the challenged policy tends to cause that disproportionate impact. See Moussouris, 2016 WL 4472930 at *9. First, Plaintiff does not allege any disproportionate impact on an age-based group. He simply alleges that “several other older workers” have also been terminated (along with workers Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 7 of 17 4831-2650-4260v.4 0086846-000055 Page 8 - DEFENDANT’S MOTION TO DISMISS DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax with at least 10 years’ employment with Defendant).4 See Jianqing Wu v. Special Counsel, Inc., 54 F. Supp. 3d 48, 54 (D.D.C. 2014) (granting motion to dismiss a disparate impact age discrimination claim and concluding that Plaintiff failed to allege “some statistical disparity, however elementary, in order for the defense to have any sense of the nature and scope of the allegation”) (internal citation omitted). Second, Plaintiff does not allege facts allowing an inference that this unstated policy or practice has a causal nexus to any unstated disproportionate impact. See Bryan v. Wal-Mart Stores, Inc., 2016 WL 6212004, *1 (9th Cir 2016) (not reported) (affirming grant of defendant employer’s motion to dismiss a disparate impact disability discrimination claim where the employer had a neutral policy to terminate employees with a history of adverse action by the pharmacy board, but Plaintiff failed to allege a causal nexus allowing the Court to reasonably infer that the policy screened out or tended to screen out persons based on disability); Subramaniam, 2013 WL 5462339, *9 (dismissing a pro se complaint with prejudice and noting that the “bare declaration” that an act “disproportionally impacted minorities, female head-of- households, the disabled[,] and seniors over the age of 50” is not a sufficient pleading). There is no fact in the complaint from which the Court can draw an inference that some facially-neutral practice impacts older workers differently than other employees. Finally, even though a failure to state facts supporting any one element of a claim is sufficient to dismiss the claim, the fact that Plaintiff’s complaint is lacking for all elements of his claim-he does not identify a challenged practice or any disparity between classes or any causal nexus-makes clear that there is no way to understand what Plaintiff means to challenge. The Court cannot “create something out of nothing.” Jianqing Wu, 54 F. Supp. 3d at 56. 4 Years of service is not the same as age. See Hazen Paper v. Biggins, 507 U.S. 604, 611 (1993) (calling age and years of service “analytically distinct”); Jianqing Wu v. Special Counsel, Inc., 54 F. Supp. 3d 48, 55 (D.D.C. 2014) (“age and experience in the field are not logical equivalents for the purpose of the ADEA”). Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 8 of 17 4831-2650-4260v.4 0086846-000055 Page 9 - DEFENDANT’S MOTION TO DISMISS DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax Because the complaint lacks necessary factual allegations, it fails to state a claim for relief based on disparate impact and that claim should be dismissed. V. CONCLUSION For the foregoing reasons, Defendant respectfully requests that this Court grant the motion to dismiss with prejudice the Second Claim for Relief. DATED this 2nd day of March, 2017. DAVIS WRIGHT TREMAINE LLP By s/ Christie S. Totten Jenna Mooney, OSB #993249 Christie S. Totten, OSB #085890 Telephone: (503) 241-2300 Facsimile: (503) 778-5299 jennamooney@dwt.com christietotten@dwt.com Attorneys for Defendant Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 9 of 17 regon Bureau of Labor and Industries Brad Avakian December 21, 2015 Commissioner HUMAN RESOURCES LOWE'S HOME CENTERS, LLC 3601 CRATER LAKE HWY 1VIEDFORD, OR 97504 RE: Complainant: Gary Bowman Respondent: Lowe's Home Centers, Llc Case #: AGEMAG151209-63380 EEOC #: 38D-2016-00150C On December 9, 2015, the enclosed complaint was filed witli-the Civil Rights Division at the Bureau of Labor & Industries, alleging unlawful discrimination. The investigator assigned to the complaint is Helen Russon. Your investigator can be reached at 971-673-0804. A complete written response to the allegations is due within 14 days of the date of this letter. Please respond to each allegation, and include supporting documentation or other evidence. SEND YOUR POSITION STATEMENT TO: BOLI/CRD ATTN Position Statements 800 NE Oregon St: # 1045 Portland, OR 97232-2180 If you have any questions regarding your response email respondentcrd@boli.state.or.us. Visit our website at http://egov.oregon.govBOLUCRD/Index.shtml and read the enclosed material on the response process. The assigned investigator will contact you after receipt of your response. This matter may be resolved at any time through a pre-determination "no fault" settlement agreement. You may wish to discuss this option and other questions or concerns with the assigned investigator. Sincerely, CIVIL RIGHTS DIVISION Administrative Support Unit Amy K. Klare, CRD Administrator Enclosure(s): Complaint of Unlawful Discrimination, Information on Response Process cc: Lowe's Home Centers, Inc., Respondent Headquarters Herman Vargas, Respondent Headquarter Contact Corporation Service Company, Registered Agent DL ~ PORTLAND SALEM EUGENE 800 NE Oregon St. Suite 1045 . 3865 Wolverine St. NE; E-1 1400 Executive Parkway, Suite 200 Portland, OR 97232-2180 Salem, OR 97305-1268 Eugene, OR 97401-2158 (971) 673-0761 (503) 378-3292 (541) 686-7623 Fax (971) 673-0762 FAX (503) 373-7636 FAX (541) 686-7980 BEND MEDFORD Apprenticeship and Training Apprenticeship and Training Worksource Bend Oregon Relay TTY:711 119 N Oakdale Ave. 1645 NE Forbes Rd, Ste 106 Medford, OR 97501-2629 Bend, OR 97701-4990 www.oregon.gov/boli (541) 776-6201 FAX (541) 389 8265 AN EQUAL OPPORTUI~ITY E1VIPLOYER FAX (541) 776-6284 m Exhibit 1 Page 1 of 8 Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 10 of 17 RECEI d ED BUREAU OF LAI30R AND INDUSTRCES f- -'I R'vh D' '' C I' t f U 1 f 1 P . DEC - 9 2015 i V i ~` ts ~v sfon. omp a~n o n aw u ract ce CIVIL RIGHTS DIVISION AGEMAG:151209-63380 RTtAND-OFFICE COMPLAINANT: Case #: Attorney: Michael Franell Gary H. Bowman 2887 Far West Avenue Medford; OR 97501 Phone #: 541-601-5574 724 S. Central Ave 4113 Medford; OR 97501 Phone #: 541-646-4111 RESPONDENT: Lowes Home:Centers, LLC 3601 Crater Lake.Highway Medford, OR 97504 Courity-: aackson Phcine #: .(541) 776-8421 Contact: Rebekkah Hicks # of Employees: 50+ Headquarters: Lowes Home Centers, LLC 1605 Curtis Bridge Road Wilkeshoro, NC 28697 Phone #: ORS 659A:030(1)(a)(b), Age Discrimination; Records violation ORS 652.750 1, Gary H. Bowtii'tan, under penalty of perjtary state as follows: I. I was employed by Lowes and th.eir pred'ecessors for more than twenty vears. 2. I atn 54 years old. 3. I ivas the oldest employee in my department working for Lowes in t.he.Medford store. 4. I was terniinated without Lowes follo-wing their normal disoiplinary process. 5. 1 was replaced by a young man 4vhdm I. believe is only 26 years of age. 6. I was fired on October 08, 2015, after I stopped by my house on September 22, 2015, u7hen I had a delivery in the area. around: m}7 house. I was at mv house for less than five miriutes on September 22, 2015. 7. Other erriployees regularly will stop by their houses when they are near and they have not receiyed discigline for that. 8. I believe the true reason that I..was fired was due to my age. 9. The AS1V1,"Jennifer Parker, who was responsible for checking out the load I was carrying knew l was plarnn.ing on stopping b.y my house and she never indicated that was against any policies.. 10. Jennifer Parker regularly inade comments,to my about my age. She would ask me questioiis lilce "1 thought you were going #o retire?" or "When are you going to retire?" 11. I haye requested.rny fiill personnel f'ile by.letter which I mailed October 1.5, 2015. The request was- received by Lowes on October 19, 2015. To date, I have riot received my personnel file. It has been longei than 45 days since I recluested by file. 12. Attached is a copy of the letter and the certifred receipt of the ietter 1 sent to Lowes requestirig my personnel file. Paye I of2 BOLI COMPLAINT Exhibit 1 Page 2 of 8 Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 11 of 17 BUREAtJ OF LABOR AND INDUSTRIES Civil Rights Division Coniplaint ofUniawful Practice I s«ear (or aff rm) that I know and understand this complaint arid that it is true to the best of my knowledge, informatiosr, and beli ~ ,~--..e,~.-----• ~ - - Your signatur~ ~' ~; ~' Dated this 9 Day of December, 2015 VerifiiVation upon 0ath or A#firmation State of, OREGON ) ) ss County, of JACKSON ) Signed and swom to (or affirmed) before me this 9 h̀ day of December, 2015 by Gary Bowman. OFFlCIAL STAMP NIiMiAEL: VY fR142dE11 r_ lvO7ARY pUBuC - OREWni N ary Pub i f Oregon coMMIssit~Ntvo sa3~~ .. y Co€nmission E~pires: MY t~MINISSiQN EXPI}~S NOVEtNBERl2, 20'~9 ( Page 2 of 2 BOLI COMPLATNT Exhibit 1 Page 3 of 8 Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 12 of 17 r ~ ~ ~.~ i- regon Bureau of Labor and Industries Brad Avakian December 21, 2015 Commissioner HUMAN RESOURCES LOWE'S HOME CENTERS, LLC 3601 CRATER LAKE HWY MEDFORD, OR 97504 RE: Complainant: Gary Bowman Respondent: Lowe's Home Centers; Llc Case #: AGEMAG151209-63380 EEOC #: 38D-2016-00150C You have been identified as a participant in a Civil Rights complaint that has been filed with the Civil Rights Division at the Bureau of Labor and Industries. The investigator assigned to your case is Helen Russon, and the phone number is 971-673-0804. In the course of processing this civil rights complaint, it was determined that the complaint met the criteria to be filed under both state and federal law. Therefore, this complaint was co-filed with the Equal Employment Opportunities Commission (EEOC). The EEOC is our federal counterpart. Co-filing ensures that the complaint is recorded with both state and federal civil rights enforcement agencies. Enclosed, please fmd an EEOC charge notification letter, Form 131-A. Unless otherwise notified, the complaint will still be investigated by our agency. Once we conclude our investigation, you may receive further correspondence from EEOC. No response to this letter is required. Visit our website at http://egov.oregon.govBOLUCRD/Index.shtml. Sincerely, CIVIL RIGHTS DIVISION Administrative Support Unit Amy K. Klare, CRD Administrator Enclosure(s): EEOC Co-filing Notification Letter (Form 131-A) cc: Lowe's Home Centers, Inc., Respondent Headquarters Herman Vargas, Respondent Headquarter Contact Corporation Service Company, Registered Agent DL PORTLAND SALEM EUGENE 800 NE Oregon St. Suite 1045 3865 Wolverine St. NE; E-1 1400 Executive Parkway, Suite 200 Portland, OR 97232-2180 Salem, OR 97305-1268 Eugene, OR 97401-2158 (971) 673-0761 (503) 378-3292 (541) 686-7623 Fax (971) 673-0762 FAX (503) 373-7636 FAX (541) 686-7980 BEND MEDFORD Apprenticeship and Training Apprenticeship and Training Worksource Bend Oregon Relay TTY:711 119 N Oakdale Ave. 1645 NE Forbes Rd, Ste 106 Medford, OR 97501-2629 Bend, OR 97701-4990 www.ore on. ov/boli (541) 776-6201 FAX (541) 389-8265 AN EQUAL OPPORTU~TITY EMPLOYER FAX (541) 776 6284 j Exhibit 1 Page 4 of 8 Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 13 of 17 EEOC FORM 131 -A (11/09) U.S. Equal Employment Opportunity Commission PERSON FILING CHARGE Gary H. Bowman THIS PERSON (check one or both) Fxl Claims To Be Aggrieved LOWES, HIW, INC ❑ Is Filing on Behalf of Other(s) 3601 Crater Lake Hwy EEOC CHARGE NO. Medford, OR 97504, 38D-2016-00150 FEPA CHARGE NO. AGAG151209-63380 NOTICE OF CHARGE OF DISCRIMINATION IN JURISDICTION WHERE A FEP AGENCY WILL INITIALLY PROCESS (See the enclosed for additional information) THIS IS NOTICE THAT A CHARGE OF EMPLOYMENT DISCRIMINATION UNDER F-I Title VII of the Civil Rights Act (Title VII) F-I The Equal Pay Act (EPA) 1-1 The Americans with Disabilities Act (ADA) F-x-1 The Age Discrimination in Employment Act (ADEA) F-I The Genetic Information Nondiscrimination Act (GINA) HAS BEEN RECEIVED BY F-I The EEOC and sent for initial processing to (FEP Agency) FTI The Oregon Bureau of Labor & Industries - Civil Rights Division and sent to EEOC for dual filing purposes. (FEP Agency) Wfiile EEOC has jurisdiction (upon expiration of any deferral requirement if this is a Title VII, ADA or GINA charge) to investigate this charge, EEOC may suspend its investigation and await the issuance of the Agency's final findings and orders. These findings and orders will be given weight by EEOC in making its own determination as to whether reasonable cause exists to believe that discrimination has occurred. You are therefore encouraged to cooperate fully.with the Agency. AII facts and evidence provided by you to the Agency will be considered by EEOC when it reviews the Agency's final findings and orders: In many cases EEOC will take no further action, thereby avoiding the necessity of an investigation by both the Agency and EEOC. This likelihood is increased by your active cooperation with the Agency. As a party to the charge, you may request that EEOC review the final findings and orders of the above-named Agency. For such a request to be honored, you must notify EEOC in writing within 15 days of your receipt of the Agency's final decision and order. If the Agency terminates its proceedings without issuing a final finding and order, you will be contacted further by EEOC. Regardless of whether the Agency or EEOC processes the charge, the Recordkeeping and Non-Retaliation provisions of the statutes as explained in the enclosed information sheet apply. For further correspondence on this matter, please use the charge number(s) shown above. Enclosure(s): Copy of Charge CIRCUMSTANCES OF ALLEGED DISCRIMINATION ❑ Race ❑ Color 1-1 Sex ~ Religion ❑ National Origin ® Age ❑ Disability ❑ Retaliation ❑ Genetic Information ❑ Other See enclosed copy of charge of discrimination. Date Name / Title of Authorized Official Signature William R. Tamayo, December 18, 2015 District Director Exhibit 1 Page 5 of 8 Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 14 of 17 Exhibit 1 Page 6 of 8 Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 15 of 17 Exhibit 1 Page 7 of 8 Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 16 of 17 Exhibit 1 Page 8 of 8 Case 1:16-cv-02320-MC Document 10 Filed 03/02/17 Page 17 of 17