Garcia v. Union Pacific Railroad Company et al

Motion for Summary Judgment .

D. Or.February 6, 2017

Page 1 - DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 2742159 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 Timothy J. Coleman, OSB No. 841970 tcoleman@cosgravelaw.com Shane P. Swilley, OSB No. 053909 swilley@cosgravelaw.com COSGRAVE VERGEER KESTER LLP 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION RAUL GARCIA, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware Corporation, Defendant. Case No. 3:16-cv-00390-SB DEFENDANT’S MOTION FOR SUMMARY JUDGMENT I. LR 7-1(a) CERTIFICATION Pursuant to LR 7-1(a), defendant’s counsel certifies that, prior to filing this motion, the parties conferred regarding the disputes at issue in this motion, and the parties were unable to resolve them. II. INTRODUCTION Defendant Union Pacific Railroad Company (“Union Pacific”) moves for summary judgment because plaintiff Raul Garcia filed his lawsuit after the applicable statute of limitations expired. In support of this motion, Union Pacific relies on the court record, the following memorandum, and the Declaration of Shane P. Swilley (“Swilley Dec.”), with exhibits, filed herewith. Case 3:16-cv-00390-SB Document 33 Filed 02/06/17 Page 1 of 6 Page 2 - DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 2742159 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 III. MOTION A. Relevant Facts On October 9, 2014, Plaintiff filed a complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”). (Swilley Dec. ¶ 2, Ex. 1). Plaintiff claimed that Union Pacific removed him from service on August 1, 2014, and has not allowed him to return to work, because of his national origin (Hispanic) and/or because Union Pacific perceives him as having a disability. Id. Plaintiff alleges that the last time any discrimination took place was August 22, 2014. (Id.). On January 30, 2015, the Oregon Bureau of Labor and Industries (“BOLI”) sent a letter to plaintiff informing him that the EEOC had notified BOLI of his complaint. (Id. at ¶ 3, Ex. 2). The letter further informed plaintiff that: “The Oregon filing will remain deferred to the EEOC until one year from the filing date. At that time, this agency will close the Oregon case filing and issue a right to sue notice.” (Id.). On October 9, 2015, BOLI closed its case file and issued plaintiff a 90-day right- to-sue letter that covered any state-law discrimination claims plaintiff may have arising out of the allegations made in his EEOC complaint. (Id. at ¶ 4, Ex. 3). BOLI’s letter clearly and conspicuously notified plaintiff that “you have the right to file a suit in state circuit court based on the allegations in your complaint within 90 days from the date of this letter. After 90 days, this right will be lost.” (Id. (emphasis added)). Plaintiff’s 90-day time limit to file a lawsuit alleging claims under Oregon law expired on January 7, 2016. Five days later, on January 12, 2016, plaintiff filed a complaint in Multnomah County Circuit Court alleging that Union Pacific had withheld him from service and terminated his employment in August 2014 because of his national origin and/or disability, in violation of ORS 659A.030 (prohibiting national origin discrimination) and ORS 659A.103, et seq. (prohibiting disability discrimination). (Id. at ¶ 5, Ex. 4 (Complaint)). These are the same claims of discrimination that plaintiff made Case 3:16-cv-00390-SB Document 33 Filed 02/06/17 Page 2 of 6 Page 3 - DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 2742159 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 in his EEOC complaint. (Id. at Exs. 1 & 4). Plaintiff did not allege in his Complaint that Union Pacific had violated any federal laws.1 (Id.). On March 2, 2016, Union Pacific timely removed plaintiff’s state court action to federal court. (Dkt. 1 (Notice of Removal)). On March 29, 2016, the EEOC closed its case and issued plaintiff a 90-day right- to-sue letter that clearly and conspicuously informed plaintiff: “This is your Notice of Right to Sue, issued under Title VII, the ADA or GINA based on the above-numbered charge. It has been issued at your request. Your lawsuit under Title VII, the ADA or GINA must be filed in a federal or state court WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost.” (Swilley Dec. ¶ 7, Ex. 6 (emphasis in original)). A copy of this letter was sent to plaintiff’s attorney. (Id.). Ten months have passed since the EEOC sent plaintiff his 90-day right-to-sue notice.2 Plaintiff has made no effort to amend his complaint to add claims under federal law. On August 29, 2016, plaintiff did amend his complaint, but he did not add claims under federal law. (Dkt. 23 (Second Amended Complaint)). In fact, his Second Amended Complaint specifies that he is suing for “violation of Oregon civil rights statutes,” which were covered by the 90-day filing deadline established by BOLI’s right- to-sue letter. (Id. at ¶ 4). Union Pacific now moves for summary judgment on each of plaintiff’s claims because they were not timely filed. 1 On January 25, 2016, plaintiff amended his state law complaint to add “Jerrald Moore” as an individual defendant. (Swilley Dec. ¶ 6, Ex. 5). The substance of plaintiff’s discrimination claims did not change, nor did he add claims under federal law. (Id.). Plaintiff voluntarily dismissed Mr. Moore after Union Pacific removed the case to federal court. (See Dkt. 12, p. 2 (plaintiff’s response to Union Pacific’s motion to dismiss)). 2 Union Pacific does not know when plaintiff received the EEOC’s right-to-sue letter. However, the Ninth Circuit has adopted a rebuttable presumption that a claimant receives a right-to-sue letter within three days of its issuance. Payan v. Aramark, Mgmt. Serv., Ltd., 495 F.3d 1119, 1124-26 (9th Cir. 2007). Case 3:16-cv-00390-SB Document 33 Filed 02/06/17 Page 3 of 6 Page 4 - DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 2742159 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 B. Summary Judgment Standard Summary judgment is appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. Proc. 56(c). The moving party is responsible to show the absence of a dispute as to a material fact. Emeldi v. Univ. of Or., 673 F.3d 1218, 1223 (9th Cir. 2012). The nonmoving party must then “go beyond the pleadings and show there is a genuine dispute as to a material fact for trial.” Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). C. Applicable Law A plaintiff has 90 days after receiving a right-to-sue letter from the EEOC to file a lawsuit alleging claims of national origin discrimination under Title VII or disability discrimination under the ADA.3 42 U.S.C. § 2000e–5(f)(1) (Title VII procedure); 42 U.S.C. § 12117(a) (adopting Title VII procedures for ADA); Stiefel v. Bechtel Corp., 624 F.3d 1240, 1245 (9th Cir. 2010). Likewise, Oregon law requires that a plaintiff who wants to pursue a civil action for violations of state discrimination laws after filing a complaint with BOLI must file the civil action “within 90 days after a 90-day notice is mailed to the complainant.” ORS 659A.875(2). These 90-day filing periods act as a statute of limitations; allegations made in a BOLI or EEOC complaint are time-barred if filed after the 90-day period expires. Steifel, 624 F.3d at 1245; Clink v. Oregon Health and Sci. Univ., 9 F.Supp.3d 1162, 1164-65 (D. Or. 2014); Sharer v. Oregon 481 F. Supp 2d 1156, 1164 (D.Or. 2007); Romero- Manzano v. Carlton Plants, LLC, 2016 WL 4473435 at *7 (D.Or. Aug. 24, 2016). 3 “Title VII” prohibits discrimination in employment because of national origin, and is the federal equivalent of ORS 659A.030. 42 U.S.C. § 2000e–2(a). “ADA” refers to the Americans with Disabilities Act, which prohibits discrimination because of disability and is the federal equivalent of ORS 659A.112. 42 U.S.C. § 12112. Case 3:16-cv-00390-SB Document 33 Filed 02/06/17 Page 4 of 6 Page 5 - DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 2742159 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 A joint filing with the EEOC and BOLI does not eliminate or extend either limitations period. Stewart v. Rock Tenn CP, LLC, 2015 WL 1883910 at *4 (D.Or. Apr. 24, 2015). Rather, BOLI’s 90-day limitations period applies to discrimination claims brought under Oregon law, the EEOC’s 90-day limitations period applies to discrimination claims brought under Title VII and the ADA, and each limitations period runs separately from the date the agency issued its right-to-sue letter. Id. D. Argument In this case, plaintiff’s claims are time-barred and must be dismissed. Plaintiff only alleges violations of Oregon employment discrimination laws. It is undisputed that those state-law claims are based on the same allegations of discrimination that plaintiff made in his EEOC complaint that was co-filed with BOLI. It is also undisputed that plaintiff filed his lawsuit five days after the 90-day filing deadline set by BOLI’s right-to- sue letter expired. As a result, the state-law claims alleged in plaintiff’s lawsuit are time- barred and must be dismissed. Clink, 9 F.Supp.3d at 1165 (lawsuit filed two days after BOLI 90-day filing period expired was untimely). Plaintiff cannot save his case by alleging claims under federal law because the 90-day filing deadline to bring those claims, as set by the EEOC’s right-to-sue letter, has long since expired. Id. IV. Conclusion For the reasons above, the court should grant Union Pacific’s motion for summary judgment and dismiss plaintiff’s claims in the entirety. DATED: February 6, 2017 s/Shane P. Swilley Timothy J. Coleman, OSB No. 841970 tcoleman@cosgravelaw.com Shane P. Swilley, OSB No. 053909 swilley@cosgravelaw.com Telephone: (503) 323-9000 Fax: (503) 323-9019 Attorneys for Defendant Case 3:16-cv-00390-SB Document 33 Filed 02/06/17 Page 5 of 6 Page 1 - CERTIFICATE OF SERVICE 2742159 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing DEFENDANT’S MOTION FOR SUMMARY JUDGMENT on the date indicated below by: mail with postage prepaid, deposited in the US mail at Portland, Oregon, hand delivery, facsimile transmission, overnight delivery, electronic filing notification. If served by facsimile transmission, attached to this certificate is the printed confirmation of receipt of the document(s) generated by the transmitting machine. I further certify that said copy was placed in a sealed envelope delivered as indicated above and addressed to said attorney(s) at the address(es) listed below: Paul S. Bovarnick Rose Senders & Bovarnick, LLC 1205 N.W. 25th Avenue Portland, OR 97210 Of Attorneys for Plaintiff Kevin C. Brague The Brague Law Firm 1205 NW 25th Avenue Portland, OR 97210 Of Attorneys for Plaintiff DATED: February 6, 2017 s/Shane P. Swilley Shane P. Swilley Case 3:16-cv-00390-SB Document 33 Filed 02/06/17 Page 6 of 6