Macfarlane v. Fivespice Llc

Motion for Summary Judgment . Oral Argument requested.

D. Or.June 29, 2017

1 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 Jennifer A. Nelson, OSB No. 034086 jennifer.nelson@ogletreedeakins.com Alysia J. Harris, OSB No. 141315 alysia.harris@ogletreedeakins.com Ogletree, Deakins, Nash, Smoak & Stewart, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Telephone: 503.552.2140 Fax: 503.224.4518 Attorneys for Defendant FIVESPICE LLC UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION KIERSTIN MACFARLANE, Plaintiff, v. FIVESPICE LLC dba CAFÉ MURRAYHILL, Defendant. Case No.: 3:16-cv-01721-HZ DEFENDANT FIVESPICE LLC’S MOTION FOR SUMMARY JUDGMENT ORAL ARGUMENT SCHEDULED AUGUST 14, 2017, 3:00 P.M. RULE 7.1 CERTIFICATE OF COMPLIANCE Counsel for Defendant Fivespice, LLC dba Café Murrayhill (“Cafe” or “Defendant”) conferred with Plaintiff’s counsel regarding Defendant’s Motion for Summary Judgment, but the parties were unable to resolve the issues presented in this motion. MOTION Pursuant to Federal Rule of Civil Procedure 56, Defendant respectfully requests that this Court issue an order granting summary judgment in its favor and against Plaintiff’s First and Fourth Claims for Relief, for a hostile work environment based on sexual harassment under 42 U.S.C. §2000e-2(a), and ORS 659A.030, and “Wrongful Termination,” respectively. This Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 1 of 22 2 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 motion is supported by the following Memorandum of Points and Authorities, the Declarations of Alysia J. Harris and David Lawler, and the exhibits thereto, filed concurrently herewith; and the pleadings filed in this matter. I. INTRODUCTION Three and a half months after her termination, Plaintiff filed a BOLI Complaint alleging that one Fivespice employee, Jose Ayala (“Ayala”), engaged in three discrete (and disputed) episodes of sexual harassment during a four-month period. Her BOLI Complaint did not allege harassment by any other Fivespice employee. Plaintiff now seeks to rely on unrelated allegations of misconduct by two additional Café employees, Bob Corser and Raul Almaraz, to support her hostile work environment claim. Plaintiff failed to exhaust her administrative remedies as to those allegations and they cannot form the basis of her Title VII hostile work environment claim. Likewise, her new allegations are untimely and cannot support her state law hostile work environment claim because she did not include them in her BOLI Complaint. Moreover, Plaintiff’s allegations against Ayala are insufficient to establish a hostile work environment as a matter of law. Defendant requests that this Court dismiss Plaintiff’s hostile work environment claim in its entirety, or, alternatively, dismiss the hostile work environment claim to the extent it relies upon allegations of misconduct by Corser or Almaraz. Defendant also requests that this Court dismiss Plaintiff’s Wrongful Termination claim for failing to state a claim under the cited statutes, and because any common law wrongful termination claim is precluded by the availability of an adequate statutory remedy. II. STATEMENT OF FACTS1 Plaintiff worked as a front-of-house employee (server and food runner) at Café Murrayhill from August 2011 through her termination on February 20, 2015.2 She worked with 1 Fivespice offers this statement of facts, including allegations by Plaintiff, for purposes of summary judgment only. 2 Declaration of Alysia J. Harris (“Harris Decl.”), Ex. 1, Deposition of Kierstin MacFarlane at 20:10-13; 22:19-21. Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 2 of 22 3 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 General Manager Bob Corser from the time he hired her until his sudden death on December 20, 2014.3 She worked with Ayala, a line cook, from July 20134 through the end of her employment, and with Almaraz, another line cook, throughout her employment.5 The Café’s General Manager controlled scheduling, compensation, and discipline (including termination) for the front of the house employees, while the Executive Chef held the same responsibilities related to the back-of-house employees.6 As cooks, Ayala and Almaraz did not have any supervisory authority over any Café employees, much less Plaintiff: they did not control her pay or schedule, and could not and did not discipline her.7 She never reported to them.8 A. June 3, 2015: Plaintiff files a BOLI Complaint that makes no mention of Corser or Almaraz. On June 3, 2015, Plaintiff filed a Complaint with the Bureau of Labor and Industries (“BOLI”).9 The BOLI Complaint alleged that between November 30, 2014 and January 2015, Jose Ayala, a cook at the Café, made sexual comments toward her and touched her inappropriately once.10 The BOLI Complaint also alleged that Plaintiff text messaged the Café’s Executive Chef, Martin Virgen, to report Ayala’s alleged misconduct, and that she was terminated11 because of her gender, and in retaliation for reporting allegations of Ayala’s conduct 3 Harris Decl., Ex. 1 at 55:9-14. 4 Harris Decl., Ex. 2, Mattera Testimony (65:22-66:4) regarding Ayala Job Application. Harris Decl., Ex. 3, Ayala Job Application. 5 Declaration of David Lawler (“Lawler Decl.”), ¶2. 6 Lawler Decl., ¶3. 7 Lawler Decl., ¶4. 8 Harris Decl., Ex. 1 at 40:5-41:10. 9 Harris Decl., Ex. 4, Plaintiff’s BOLI Complaint. Plaintiff was represented by counsel throughout the entire BOLI process. 10 Id. 11 Fivespice denies Plaintiff’s allegations. Plaintiff was terminated because she was late to work, changed her timecards improperly, and had poor work performance. Harris Decl., Ex. 5, Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 3 of 22 4 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 to Virgen.12 The BOLI Complaint neither mentioned the names Bob Corser or Raul Almaraz, nor alleged or described misconduct of any “John Doe” employee; it was limited to allegations of inappropriate behavior by Ayala during a four month time period.13 After Plaintiff filed her Complaint, BOLI issued a request for information to Plaintiff’s counsel.14 That included a request for a list of witnesses in support of Plaintiff’s claims, and a request to identify and describe evidence that was not in Plaintiff’s possession, but that might be relevant to her claims.15 Plaintiff responded on July 1, 2015, and named only one witness, Justin Ward, as having information about her allegations.16 In response to the request for other sources of evidence, Plaintiff stated “Regarding category number five, the following employees of Fivespice LLC may have possible evidence regarding complainant’s BOLI complaint: Chef Martin Virgen, General Manager David Lawler and Jose Ayala.”17 She did not identify Almaraz or Corser (who is deceased), and Almaraz’s and Corser’s names do not appear in Plaintiff’s response to BOLI’s Request for Information.18 Plaintiff’s response to BOLI included a six-page enclosure to BOLI, comprised of four pages of text message screenshots and a two-page statement regarding her alleged harassment.19 Deposition of David Lawler at 132:12-24; 168:2-9; 194:10-17. 12 Harris Decl., Ex. 4. 13 Id. 14 Harris Decl., Ex. 6, BOLI Request for Information to Plaintiff’s counsel. 15 Id. 16 Harris Decl., Ex. 7, Plaintiff’s description of Ward’s knowledge did not include any reference to Almaraz or Corser. 17 Id. 18 Id. 19 Id. at pp. 3-4. Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 4 of 22 5 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 That statement is devoid of any reference to Bob Corser or Raul Almaraz.20 The statement includes allegations of alleged sexual harassment by one individual (Jose Ayala) during the limited time period from November 30, 2014 through February 20, 2015, and references three discrete incidents: (1) Ayala allegedly telling Plaintiff he wanted to “have children with her”, (2) Ayala allegedly grabbed her by her hips and pulled part of her backside into his face and upper body in the walk-in cooler on January 4, 2015, and (3) Ayala refusing to make a salad for her on February 15.21 Her statement also alleges verbal remarks by Ayala during the period from November 2014 through January 2015: He said bad things about me in Spanish which are derogatory words about women. I told chef and his only response was ‘how do you know what he is saying in Spanish?’ I told him I could understand parts of it and the other cooks would tell me. Before the [incident on November 30], he also did this between November-January. When I would go in the pantry area he would look at me in a sexual way and say sexual things in Spanish about me and the other chefs would laugh. I told him repeatedly to stop. He would always make comments about my butt. How he wanted it, how nice it looked, and what he wanted to do to it.22 Her statement and BOLI Complaint did not allege sexually inappropriate behavior by any Fivespice employee other than Ayala. Moreover, Plaintiff did not raise any alleged harassment by Corser during her BOLI interview: Q: Were you ever interviewed by a BOLI investigator? A: Yes. Q: Did you—Did you tell the BOLI investigator about Mr. Corser’s comment about red lipstick and ladies of the night? A: I don’t remember talking about Bob’s sexual harassment with her.23 20 Harris Decl., Ex. 7. 21 Id. 22 Id. 23 Harris Decl., Ex. 1 at 61:1-7 Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 5 of 22 6 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 BOLI’s dismissal memorandum of April 25, 2015, makes no mention of an investigation of any allegations of sexually inappropriate behavior by Corser, Almaraz, or anyone other than Ayala.24 B. July 18, 2016: Plaintiff files this lawsuit and makes no mention of sexually inappropriate behavior by Corser or Almaraz. On July 18, 2016, Plaintiff filed this lawsuit asserting, inter alia, a claim for hostile work environment under ORS 659A.030 and Title VII, based upon only the same discrete incidents of Ayala’s alleged misconduct detailed in her BOLI Complaint. (Dkt. No. 1-1). Plaintiff’s Complaint did not mention Raul Almaraz (or any John Doe) at all, and it mentioned Corser in only two paragraphs that had nothing to do with alleged sexually inappropriate behavior: 6. Until December 2014, Bob Corser was the General Manager at Café. Upon Mr. Corser’s sudden death, David Lawler was promoted to General Manager on or about December 20, 2014. 7. Mr. Lawler was required to split his time as General Manager between two locations owned by defendant, Café and Blast Burger, because of the sudden loss of Bob Corser as the General Manager. Mr. Lawler assumed the full-time General Manager position at Café in or about Mid-January of 2015. (Dkt. No. 1-1, ¶¶ 6-7). Plaintiff’s Complaint further specified that “Ayala subjected plaintiff to a hostile workplace. Ayala subjected plaintiff to unwanted advances, comments of a sexual nature and unwanted conduct. . . ” Id. at ¶ 9. The Complaint alleged specific incidents of conduct by Ayala as occurring between November 30, 2014 and February 15, 2015. Id. at ¶ 9. In line with her allegations during the BOLI proceedings, Plaintiff’s Complaint did not allege any sexually harassing behavior by anyone other than Ayala, and it did not allege any sexually harassing behavior outside of the narrow November 2014 through January 2015 timeframe. Id. It 24 Harris Decl. Ex. 8, BOLI Memorandum of Dismissal. Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 6 of 22 7 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 certainly did not allege that Raul Almaraz or Bob Corser behaved in a sexually inappropriate manner at any time. Id. Similarly, Plaintiff’s Initial Disclosures of September 26, 2016, made no mention of alleged harassment by Corser or Almaraz, and did not list Almaraz as a potential witness with knowledge.25 C. January 20, 2017: Plaintiff testifies that Corser and Almaraz engaged in sexually inappropriate conduct. At her initial deposition on January 20, 2017, Plaintiff inserted Corser and Almaraz into this litigation for the first time when she testified that they sexually harassed her.26 Specifically, she testified that Almaraz made comments about her appearance, locked her in a walk-in cooler and touched her, popped her with a dishtowel, and touched her in tight spaces in the restaurant, like the expo (food delivery area) or the hallway.27 She could not recall when Almaraz allegedly harassed her.28 She also testified that Corser, the Café’s General Manager until his death on December 20, 2014, harassed her as early as the date of her initial job interview in August 2011.29 Specifically, Plaintiff testified that Corser made a total of four comments about how she looked.30 Plaintiff also testified that Ayala: initiated physical contact with her in the walk-in cooler on January 4, 2015;31 made what she described as a “growl” noise at her in the walk-in cooler as he started speaking in Spanish, and did not let her get past while he made a comment in Spanish 25 Harris Decl., Ex. 9, Plaintiff’s Initial Disclosures. 26 Harris Decl., Ex. 1 at 56:9-16. 27 Id. at 98:14-23; 146:21-147:10. 28 Id. at 100:23-101:1. 29 Id. at 62:4-8. 30 Id. at 56:17-24; 57:8-58:25; 59:1-4; 62:4-8; 70:2-4; 70:8-14. 31 Id. at 150:7-19; 154:14-18. Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 7 of 22 8 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 about liking her backside and rubbed his pelvis against her;32 made a comment in Spanish that another cook, Jose Leon, translated to her;33 on fewer than five occasions, made a comment in front of another cook that the cook would not translate to English, but that MacFarlane felt was harassing;34 made a comment about her in Spanish and then giggled and walked away;35 made a single comment about her backside;36 made between two and five comments about her breasts;37 and on November 30, 2014, made a comment to her about wanting children with her.38 Ayala did not make any harassing comments in Spanish toward Plaintiff after Corser’s death on December 20, 2014.39 Instead, he ignored her.40 Magically, on February 24, 2017, after her deposition, more than two years after her termination, and long after the newly pled incidents allegedly occurred, Plaintiff filed an Amended Complaint alleging that Corser and Almaraz also subjected her to a hostile work environment. (Dkt. 14, ¶¶ 9, 11, 12). 32 Harris Decl., Ex. 1 at 150:20-23; 176:3-178:2; 182:9-25. MacFarlane cannot remember when this occurred. Id. 33 Id. at 182:9-25; 200:18-202:4. MacFarlane cannot remember what Ayala’s comments about her were. She says the other cook, Jose Leon, “just said that [Ayala] said that he wanted to do something to me.” MacFarlane cannot remember when this occurred. Id. 34 Id. at 179:1-25; 180:20-181:17; 182:9-21. MacFarlane cannot remember the earliest occasion when this occurred, but estimates the most recent occasion was near November 2014. Id. at 183:1-21. 35 Id. at 180:1-19. MacFarlane could recall only one occasion, but she estimates this occurred “maybe only two or three” times. 195:4-14. MacFarlane cannot remember when any instance of this occurred. Id. at 195:15-21. 36 Id. at 209:13-211:12. MacFarlane cannot remember when this occurred. 210:7-11. 37 Id. at 207:6-208:14. MacFarlane cannot remember when this occurred. 207:11-21. 38 Id. at 209:5-9. 39 Id. at 184:2-12. 40 Id. Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 8 of 22 9 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 D. Plaintiff’s “wrongful termination” claim is based on the same allegations as her retaliation and whistleblower claims. Plaintiff’s retaliation claim is based upon complaints to Barry Cain (owner of Fivespice), David Lawler (former General Manager), and Martin Virgen (former Chef), which she says she made over the course of her employment.41 Plaintiff’s whistleblowing claim is based upon the same complaints to Barry Cain and Virgen.42 Her wrongful termination claim is similarly based upon the same complaints: Q: Why do you feel that you were wrongfully discharged? A: Because I constantly went to management to fix these issues that were never fixed. I told David I would help him in any way that he needs with this transition from Bob being gone to him. I tried to make it seem that I was there if he needed me to stay late or come in earlier or do anything. I moved to Portland-or I moved to Oregon—or, I’m sorry Tigard to be closer to the café to work there. I felt like I did all things I could do to be a good employee and was terminated with—and they did not tell me any causes and I was never written up or talked to about anything. Q: So are you saying that you were discharged because you made complaints? A: I feel like they did not want to deal with the sexual harassment issues anymore of my complaining and they fired me. Q: Well, are you saying that you were discharged because of complaints you made throughout your employment? A: I think that has [sic] part of it. Q: What’s the other part of it? A: I don’t know. 43 III. LEGAL ARGUMENT Plaintiff’s federal and state hostile work environment and state common law wrongful discharge claims fail as a matter of law. Her federal and state hostile work environment claims fail because: (1) Plaintiff failed to exhaust her administrative remedies as to Almaraz and Corser; (2); Plaintiff’s state hostile work environment claim is time-barred as to Almaraz and 41 Harris Decl., Ex. 1 at 233:20-234:14. 42 Id. at 234:15-235:2. 43 Id. at 235:20-236:18. Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 9 of 22 10 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 Corser; and (3) Plaintiff does not assert a legally cognizable claim as to Ayala. Plaintiff did not assert allegations against Almaraz and Corser until nearly two years after her termination. Her failure to exhaust her administrative remedies as to her Title VII hostile work environment claim deprives this Court of subject matter jurisdiction, and precludes it from hearing that claim. Plaintiff’s state law hostile work environment claim is time-barred to the extent it is based upon allegations of improper conduct by Corser and Almaraz because those allegations were not raised in Plaintiff’s BOLI Complaint, and thus the statute of limitations did not toll as to those allegations. Plaintiff’s claim based on Ayala’s conduct fails because, even assuming everything she says is true, his conduct cannot support a claim for hostile work environment. Plaintiff’s common law wrongful termination claim should be dismissed because it is based upon the same factual allegations as her statutory retaliation and whistleblowing claims, both of which provide an adequate remedy. A. Plaintiff failed to exhaust her Title VII hostile work environment claim based on conduct of Almaraz and Corser; no subject matter jurisdiction exists. “Incidents of discrimination not included in an EEOC charge may not be considered by a federal court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge.” Lyons v. England, 307 F.3d 1092, 1104 (9th Cir. 2002) (internal citations omitted). A Title VII allegation is like or reasonably related to the allegations contained in the EEOC complaint when a reasonable EEOC investigation would have encompassed the additional allegations. Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002) (citing B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002)). Courts analyzing exhaustion “must focus on the factual allegations made in the charge itself,” and should consider factors like “the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any locations at which discrimination is alleged to have occurred.” Id. at 636-37 (quoting B.K.B., 276 F.3d at 1100). For example, new allegations are not properly exhausted where the newly alleged unlawful behavior did not occur within the time frame of the events alleged in the EEOC charge, Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 10 of 22 11 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 those individuals were not named in the charge, and the new allegations were completely unrelated to the facts that formed the basis of the discrimination in the charge. See Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 645 (9th Cir. 2003). In Vasquez, the court held that a reasonable investigation by the EEOC would not have encompassed newly alleged retaliation where the EEOC charge did not mention the alleged retaliator, the alleged retaliation did not occur within the time frame of the events alleged in the EEOC charge, and the factual basis for the alleged retaliation was unrelated to the facts that formed the basis of the discrimination in the charge. Id. Moreover, simply mentioning the type of discrimination and protected status is not enough to exhaust remedies as to all factual allegations that could fall under that type of discrimination. See Freeman, 291 F.3d at 636-38. In Freeman, the plaintiff (a school teacher) failed to exhaust his administrative remedies where his charge alleged race and gender discrimination in the single context of a faculty election, but his lawsuit alleged race and gender discrimination in the context of teaching assignments, class size, and the handling of a labor dispute. Id. at 637-38. The court reasoned that the plaintiff’s narrow EEOC charge would not have led to an investigation of his later allegations of discrimination in teaching assignments, class size, and the labor dispute. Id. at 638. Although the claims in the plaintiff’s Amended Complaint and the EEOC charge both related to claims of racial and gender harassment and discrimination, the factual allegations in the charge “were not like or reasonably related to those in the First Amended Complaint so as to sufficiently exhaust” the plaintiff’s administrative remedies. Id. at 635. Ultimately, the plaintiff’s use of the word “discrimination” in his charge was not enough to exhaust administrative remedies related to all subsequent allegations of discrimination. Id. at 637 (“The rule of liberal construction does not suggest that a plaintiff sufficiently exhausts his administrative remedies under Title VII by merely mentioning the word ‘discrimination’ in his or her EEOC administrative charge.”). Like Vasquez and Freeman, the new allegations in Plaintiff’s Amended Complaint are Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 11 of 22 12 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 not like or reasonably related to the narrow allegations in her BOLI Complaint, and her new allegations would not have been encompassed by a reasonable EEOC investigation into her BOLI Complaint. Specifically, a reasonable investigation into allegations that Ayala made comments about having children with Plaintiff in November 2014, allegedly put his face into Plaintiff’s backside in a cooler in January 2015, and refused to make a salad for her in February 2015, are wholly unrelated to her new allegations that General Manager Corser made a handful of comments about her appearance and the appearances of female customers and coworkers. Likewise, allegations of three discrete actions by Ayala do not implicate Raul Almaraz in any way, and certainly do not relate to Almaraz making comments about her pants, touching her in the walk-in cooler, touching her stomach and backside, tickling her or brushing up against her backside, or popping her with a towel at unknown times during her employment. Because the Amended Complaint’s allegations against Corser and Almaraz are not reasonably related to the allegations in her BOLI Complaint, Plaintiff failed to exhaust her administrative remedies as to her hostile work environment claim in their regard. Plaintiff’s failure to exhaust is also apparent based on the materials she submitted to BOLI, which did not raise her new allegations. New allegations are not reasonably expected to grow out of an agency investigation where the charge, intake questionnaire, and supplemental documents do not raise the new allegations. See Mahar v. City of Portland, No. CV-03-1783- ST, 2005 WL 465428, at *5 (D. Or. Feb. 28, 2005). In Mahar, the plaintiff failed to exhaust his retaliation claim where his charge, intake questionnaire, and supplemental documents did not raise facts to support a retaliation claim, and nothing in his factual submissions would have flagged a potential retaliation claim to the EEOC investigator. Id. The court reasoned that the plaintiff’s documentation at the administrative stage did not mention one of the alleged retaliators, and did not indicate any inappropriate comments or actions by them, and noted that “the fact that the conduct all occurred in the same workplace during the same period of time is Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 12 of 22 13 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 not sufficient when the alleged basis for discrimination and the alleged perpetrators differ.” Id.44 Here, Plaintiff did even less than the plaintiff in Mahar who identified the alleged harassers as potential witnesses to his earlier administrative claim. Plaintiff did not mention Corser or Almaraz in her BOLI Complaint or her written materials in support thereof; she did not list Almaraz as a potential witness or describe any witnesses as having knowledge of alleged harassment or any conduct by Corser and Alamaraz; and she did not discuss Corser’s alleged harassment with BOLI’s investigator. Furthermore, the alleged conduct of Corser (making comments about Plaintiff’s appearance) and Almaraz (asking Plaintiff out and popping her with towels) is not related to the conduct by Ayala (putting his face in Plaintiff’s backside in a walk-in cooler and making unknown comments about her in Spanish between November 2014–February 2015). This further confirms that a reasonable EEOC investigation of Plaintiff’s BOLI Complaint would not have focused on anything beyond Ayala’s alleged misconduct during a narrow, four-month time frame, and Plaintiff’s allegation that her termination was retaliatory. This Court lacks subject matter jurisdiction over Plaintiff’s Title VII claims to the extent they rely on the conduct of Almaraz and Corser. Her claim must be dismissed.45 B. Plaintiff’s state law hostile work environment claim based on the conduct of Almaraz and Corser is time-barred. Oregon does not have an administrative exhaustion requirement. But, Oregon does 44 The Mahar plaintiff had previously identified the alleged bad actors involved in his newly- asserted retaliation claim in a list of potential witnesses during the agency investigation, but the court noted that identifying the alleged retaliators as witnesses in the investigation was not enough, given that the plaintiff’s description of their anticipated statements did not relate in any way to the plaintiff’s new retaliation claim. Mahar, 2005 WL 465428, at *5. 45 Should this Court find that it lacks jurisdiction over Plaintiff’s federal hostile work environment claim as to Almaraz and Corser, it must also dismiss her state law hostile work environment claim as to them for lack of subject matter jurisdiction. This Court may exercise supplemental jurisdiction over those state law claims only if the state law claims arise from a “common nucleus of operative fact.” See Trustees of Construction Indus. and Laborers Health and Welfare Trust v. Desert Valley Landscape and Maintenance, Inc., 333 F.3d 923, 925 (9th Cir. 2003). This Court cannot exercise pendent jurisdiction over Plaintiff’s state law hostile work environment claim because it is not based on the same factual allegations as Plaintiff’s Title VII retaliation claim. Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 13 of 22 14 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 require that a civil action “alleging an unlawful employment practice must be commenced within one year after the occurrence of the unlawful employment practice unless a complaint has been timely filed under ORS 659A.820.” ORS 659A.875(1) (emphasis added). A BOLI complaint “must set forth the acts or omissions alleged to be an unlawful practice.” ORS 659A.820(2). In OAR 839-003-005, BOLI defines a complaint as a “written, verified statement” that must, among other things: (d) describe[] the actions complained of, including: (A) The date(s) of occurrence; (B) What the action was and how it harmed the aggrieved person; and (C) The causal connection between the aggrieved person’s protected class and the alleged harm. A complainant alleging a factual basis different from her original complaint must file an amended complaint that meets the same requirements (i.e., that describes the actions complained of, the dates of occurrence and what the action was). See Baker v. Maricle Indus., Inc., No. 6:16- cv-01793-AA, 2017 WL 1043282 at *2 (D. Or. Mar. 17, 2017) (quoting OAR 839-003-0040(3) and recognizing that “[i]f new facts are alleged, the aggrieved person must file a new complaint meeting the same standards provided in OAR 839-003-005(5).”). Here, Plaintiff did not toll the statute of limitations as to claims based on Ayala’s and Corser’s alleged conduct because she did not include those allegations in her BOLI Complaint, and more than two years have passed since she worked at the Café. Additionally, the Oregon Supreme Court has adopted the federal courts’ “like or reasonably related” analysis to determine whether issues were properly raised in an administrative complaint such that they can be pursued in litigation. See School Dist. No. 1, Multnomah County v. Nilsen, 271 Or. 461, 534 P.2d 1135, 1139-40 (citing King v. Ga Power Co., 295 F. Supp. 943, 946-47 (N.D. Ga. 1968) and adopting federal approach, stating that the issues in formal complaints “may encompass discrimination only like or reasonably related to the allegations in the individual’s complaint to the [BOLI] Commissioner.”). In Nilsen, the Oregon Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 14 of 22 15 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 Supreme Court analyzed whether the Attorney General was able to bring a civil action based on allegations outside of those filed in a complainant’s charge to the BOLI Commissioner. Id. The complainant in Nilsen was a teacher who was discharged after she refused to resign under the school district’s policy requiring teachers who became pregnant during their probationary period to resign and restart the probationary period upon their return. Her BOLI complaint specifically alleged that the school district’s policy requiring pregnant probationary teachers to resign, instead of allowing them to take maternity leave, was discriminatory based on sex. The court adopted the “like or reasonably related” standard and held that the Commissioner’s order exceeded his authority where it impermissibly encompassed sick pay during pregnancy leave and restrictions on working partial school years in the event of maternity leave. Id. at 1140. Oregon’s prohibition on inserting defendants into litigation who were not named as respondents in BOLI proceedings is also instructive. Plaintiffs cannot add a new defendant in litigation if that defendant was not named as a respondent during BOLI proceedings. This rule applies to both entities and individuals. See Baker, 2017 WL 1043282 at *6 n. 2 (noting that after the one-year statute of limitations has expired, the only timely claims are those first raised in the BOLI complaint); Romero-Manzano v. Carlton Plants, LLC, No. 3:15 CV-00508-BR, 2016 WL 4473435 at *6 (D. Or. Aug. 24, 2016) (filing an EEOC complaint against one corporation does not satisfy the exhaustion requirements as to a different, separate corporation for purposes of Oregon’s statute of limitations); Body Imaging P.C. v. Bureau of Labor and Industries, 999 P.2d 475, 482 (Or. App. 2000) (additional respondent supervisor not timely added where complainant attempted to add him as a respondent in amended BOLI complaint following the conclusion of BOLI’s investigation). Courts’ unwillingness to add parties to the litigation that were not named in a BOLI complaint confirms that litigation is limited to the alleged unlawful conduct raised at the administrative level. Thus, Plaintiff’s attempt to insert new purported “bad actors” that she has known of since her employment is time-barred. As discussed in section III A, supra, the new allegations in the Amended Complaint are Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 15 of 22 16 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 not “like or reasonably related” to Plaintiff’s allegations in her BOLI Complaint. Plaintiff’s allegations against Corser and Almaraz cannot serve as the basis of her state hostile work environment claim, and it should be dismissed. C. Ayala’s conduct alone is insufficient to state a claim for hostile work environment. To prevail on a hostile work environment claim, a plaintiff must show that she was subjected to verbal or physical conduct of a sexual nature; that the conduct was unwelcome; and that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create an abusive work environment. Vasquez, 349 F.3d at 642. “To determine whether conduct was sufficiently severe or pervasive to violate Title VII, courts look at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. (internal citations omitted). “Title VII is not a general civility code… [a] violation is not established merely by evidence showing sporadic use of abusive language, gender-related jokes, and occasional teasing.” E.E.O.C. v. Prospect Airport Services, Inc., 621 F.3d 991, 998 (9th Cir. 2010). Here, Plaintiff alleges that Ayala: (1) initiated physical contact with her in the walk-in cooler on January 4, 2015;46 (2) made what she described as a “growl” noise at her in the walk-in cooler as he started speaking in Spanish, and did not let her get past while he made a comment in Spanish about liking her backside and rubbed his pelvis against her;47 (3) made a comment in Spanish that another cook, Jose Leon, translated to her;48 (4) on fewer than five occasions, made 46 Harris Decl., Ex. 1 at 150:7-19; 154:14-18. 47 Id. at 150:20-23; 176:3-178:2; 182:9-25. MacFarlane cannot remember when this occurred. Id. 48 Id. at 182:9-25; 200:18-202:4. MacFarlane cannot remember what Ayala’s comments about her were. She says the other cook, Jose Leon, “just said that [Ayala] said that he wanted to do something to me.” MacFarlane cannot remember when this occurred. Id. Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 16 of 22 17 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 a comment in front of another cook that the cook would not translate to English, but that MacFarlane felt was harassing;49 (5) made a comment about her in Spanish and then giggled and walked away;50 (6) made a single comment about her backside;51 (7) made between two and five comments about her breasts;52 and (8) on November 30, 2014, made a comment to her about wanting children with her.53 Ayala ignored her after December 20, 2014.54 Ayala’s alleged conduct—touching Plaintiff on two occasions, paired with between six and fourteen comments (Plaintiff can recall only six with certainty) over the span of twenty months,55 is not frequent or severe enough to constitute a hostile work environment. Assuming, arguendo, that Ayala engaged in the complained of conduct during the last eight and a half months (or 38 weeks)56 of Plaintiff’s employment (the time period that falls within the statute of limitations), it still was not severe or pervasive such that his conduct constituted a hostile work 49 Harris Decl., Ex. 1 at 179:1-25; 180:20-181:17; 182:9-21. MacFarlane cannot remember the earliest occasion when this occurred, but estimates the most recent occasion was near November 2014. Id. at 183:1-21. 50 Id. at 180:1-19. MacFarlane could recall only one occasion, but she estimates this occurred “maybe only two or three” times. 195:4-14. MacFarlane cannot remember when any instance of this occurred. Id. at 195:15-21. 51 Id. at 209:13-211:12. MacFarlane cannot remember when this occurred. 210:7-11. 52 Id. at 207:6-21. MacFarlane cannot remember when this occurred. 207:11-21. 53 Id. at 209:5-9. 54 Id. at 184:2-12. 55 Plaintiff’s inability to provide specific factual allegations is not insignificant. See Vasquez, 349 F.3d at 642-43 (noting that the plaintiff claimed continual harassment, but provided specific factual allegations regarding only a few incidents, and finding that the alleged conduct was not frequent, severe, and humiliating enough to create a hostile work environment.). 56 Plaintiff can remember dates as to only two instances of alleged sexual misconduct: Ayala humping her in the walk-in on January 4, 2015, and Ayala saying he wanted to have kids with her on November 30, 2014. Plaintiff cannot prove that the remaining alleged misconduct by Ayala occurred within the statute of limitations, that is, between June 4, 2014, and February 20, 2015, or that the sixteen comments occurred frequently enough within a given time period to be severe and pervasive. Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 17 of 22 18 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 environment. See Brooks v. City of San Mateo, 229 F.3d 917, 927 (9th Cir. 2000) (one incident of breast touching not sufficiently severe to constitute actionable harassment, noting “no reasonable woman in [plaintiff’s] position would believe that [her co-worker’s] misconduct had permanently altered the terms or conditions of her employment”).57 The infrequent nature of her contact with Ayala (their shifts overlapped for some period of time 36 out of 122 days that she worked within the statute) further confirms that his alleged conduct could not have been severe and pervasive. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (finding simple teasing, offhand comments, and isolated incidents (unless extremely serious) do not amount to discriminatory changes in the terms and conditions of employment). Plaintiff’s hostile work environment claim should be dismissed in its entirety. D. Plaintiff’s Fourth Claim for “Wrongful Termination” should be dismissed. Plaintiff’s Fourth Claim for “Wrongful Termination” should be dismissed because it fails to state a claim. (Dkt. 14 at ¶ 23). Plaintiff’s Complaint cites to ORS 659A.030, and 42 U.S.C. § 2000(e), but neither of those statutes provides a generic cause of action for “wrongful termination” based on a plaintiff’s “exercise of rights of public importance related to her role as an employee.”58 Based on the Amended Complaint’s language and the failure to cite to any 57 See also Del Valle Fontanez v. Aponte, 660 F. Supp. 145, 146-47, 149 (D.P.R. 1987) (finding a single incident where defendant "pressed [plaintiff] against the door with his body" and plaintiff "felt defendant's erect sexual organ against her body" twice in a five minute period not severe or pervasive enough to create a hostile working environment); see also Saxton v. American Tel. & Telegraph Co., 10 F.3d 526, 528, 534 (7th Cir. 1993) (finding insufficient harassment to constitute a hostile work environment where plaintiff was rubbed and kissed on one occasion, and resisted an attempted groping on another); LeGrand v. Area Resources for Community & Human Services, 394 F.3d 1098, 110-1102 (8th Cir. 2005) (no severe or pervasive harassment where the following “isolated incidents” occurred over a nine-month period: a priest with whom the plaintiff worked kissed the plaintiff on the mouth, grabbed the plaintiff’s buttocks, reached for plaintiff’s genitals, and suggested that the plaintiff engage in sexual activity with him); Zetwick v. Cty. of Yolo, 66 F. Supp. 3d 1274, 1281 (E.D. Cal. 2014) (finding no triable issue of harassment and rejecting plaintiff’s argument that “when Defendant Prieto kissed her on the lips on a single occasion, his behavior [of giving her hugs and kisses on the cheeks on other occasions] escalated into the realm of harassment”). 58 Both statutes provide for causes of action based on retaliatory discharge, a claim she asserts in her Second Claim for Relief. (Dkt. 14 at ¶¶ 21-22). Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 18 of 22 19 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 specific statutory provision, it appears that Plaintiff is trying to assert a claim for wrongful discharge under Oregon common law.59 However, common law claims for wrongful discharge are not available in cases like this one, where an adequate statutory remedy exists. See Ferguson v. Mgmt. Training Corp., No. 3:16-CV-00706-BR, 2017 WL 107969 (Jan. 10, 2017) (dismissing common law wrongful termination claim that was based on the same underlying conduct as the plaintiff’s whistleblowing claim under ORS 659A.199); see also Gladfelder v. Pacific Courier Servs., LLC, No. 3:12 cv-02161-SI, 2013 WL 2318840 at *2 (May 28, 2013) (acknowledging that Title VII and ORS 659A had changed over time to allow a plaintiff to recover additional types of damages and to provide adequate remedies at law, and specifically rejecting former Oregon law to the contrary). Based on her Amended Complaint and her testimony, Plaintiff’s wrongful termination claim is based on the same allegations as her retaliation and whistleblowing claims. Plaintiff alleges no new factual allegations in support of her Fourth Claim. Instead, she cites to paragraphs 1-21 of her Amended Complaint60, and states, “Defendant committed wrongful termination by terminating plaintiff’s employment in retaliation for her exercise of rights of public importance related to her role as an employee.” (Dkt. 14 at ¶ 26). At deposition, Plaintiff testified that she was discharged in part because of complaints she made throughout her employment.61 She said that she feels “like the Café did not want to deal with the sexual harassment issues anymore of my complaining and they fired me.”62 Thus, Plaintiff’s “Wrongful 59 Under Oregon law “wrongful discharge is an interstitial tort designed to fill a remedial gap where a discharge would be left unvindicated. It is an independent intentional tort that allows a remedy to an employee who is terminated for either (1) pursuing an important public or societal obligation, or (2) exercising an employment-related right of important public interest.” Reid v. Evergreen Aviation Ground Logistics Enterprises, Inc., No. CV-03-1783-ST, 2005 WL 465428 at *16 (D. Or. Feb. 28, 2005) (emphasis added) (internal citations omitted). 60 These are the same paragraphs that allege the factual bases for her retaliation and whistleblowing claims. 61 Harris Decl., Ex. 1 at 236:13-18. 62 Id. at 236:8-12. Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 19 of 22 20 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 Termination” claim relies on the same factual allegations as her retaliation claims (ORS 659A.030(1)(f); 42 U.S.C. 2000(e)-3(a)) and her whistleblowing claim (ORS 659A.199), namely that she was terminated for complaining about sexual harassment.63 Her Fourth Claim for “Wrongful Termination,” must be dismissed. IV. CONCLUSION For twenty-three months following her termination, Plaintiff’s story was the same: former Café’ employee Jose Ayala engaged in three discrete acts of allegedly inappropriate behavior that she asserts created a hostile work environment. Either sandbagging from the start or belatedly realizing that those allegations were inadequate to support a claim for a hostile work environment as a matter of law, Plaintiff attempted to inject new allegations of harassment into this litigation at her deposition on January 20, 2017. She cannot rely upon her new allegations against former employee Raul Almaraz and deceased manager Bob Corser to bolster her inadequate hostile work environment claim, as she failed to exhaust those claims at the administrative level, as required by law. This Court should dismiss Plaintiff’s First Claim for Relief based upon an allegedly hostile work environment in its entirety. Plaintiff’s Fourth Claim for Relief for “wrongful termination” is a common law claim that should be dismissed because it is based on the same factual allegations as Plaintiff’s statutory claims, for which she has an adequate remedy at law. / / / / / / / / / / / / 63 Harris Decl., Ex. 1 at 233:20-236:18. Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 20 of 22 21 – DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 Respectfully submitted, Dated: June 29, 2017 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: s/ Alysia Harris Jennifer A. Nelson, OSB No. 034086 jennifer.nelson@ogletreedeakins.com Alysia J. Harris, OSB No. 141315 alysia.harris@ogletreedeakins.com 503.552.2140 Attorneys for Defendant FIVESPICE LLC Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 21 of 22 1 – CERTIFICATE OF SERVICE OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 CERTIFICATE OF SERVICE I hereby certify that on June 29, 2017, I served the foregoing DEFENDANT FIVESPICE LLC’S MOTION FOR SUMMARY JUDGMENT on: Stephen L. Brischetto Dezi Rae Robb Law Offices of Stephen L. Brischetto 621 SW Morrison St., Suite 1025 Portland, OR 97205 slb@brischettolaw.com drobb@brischettolaw.com Of Attorneys for Plaintiff  by electronic means through the Court’s Case Management/Electronic Case File system, which will send automatic notification of filing to each person listed above.  by mailing a true and correct copy to the last known address of each person listed above. It was contained in a sealed envelope, with postage paid, addressed as stated above, and deposited with the U.S. Postal Service in Portland, Oregon.  by causing a true and correct copy to be hand-delivered to the last known address of each person listed above. It was contained in a sealed envelope and addressed as stated above.  by causing a true and correct copy to be delivered via overnight courier to the last known address of each person listed above. It was contained in a sealed envelope, with courier fees paid, and addressed as stated above.  by e-mailing a true and correct copy to the last known email address of each person listed above. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: s/ Sarah Churchill Sarah Churchill, Practice Assistant sarah.churchill@ogletreedeakins.com 30052931.2 Case 3:16-cv-01721-HZ Document 33 Filed 06/29/17 Page 22 of 22