June 18, 2004
FINDINGS AND RECOMMENDATION
After finally being served in this case on March 18, 2004, more than two years after this case was commenced, defendant Team Electric Company has filed a Motion to Dismiss or Make More Definite and Certain (docket #35). For the reasons set forth below, that motion should be granted as to plaintiff's claims arising under state law, and otherwise denied. I. Sufficiency of Service
Defendant first moves to dismiss this case based on plaintiff's failure to timely effect service of the Amended Complaint. Pursuant to FRCP 4(m), the court shall dismiss any action without prejudice if service is not made within 120 days after filing of the complaint unless the plaintiff "shows good cause for the failure" and the court extends the time for service. Plaintiff filed her Amended Complaint on October 28, 2002. Although the 120 days for service expired by March 2003, plaintiff did not serve defendant until March 18, 2004.
However, in the interim on June 2, 2003, plaintiff appeared in response to an Order to Show Cause (docket # 26). Based on her showing of good cause, this court extended the time for service to August 4, 2003 (docket #27). And on March 8, 2004, plaintiff again appeared in response to an Order to Show Cause (docket #29). Based on her showing of good cause, the court extended the time for the United States Marshal to effect service (docket #30). Although not reflected in the docket entries, plaintiff explained to the court that she sought to delay service while seeking the assistance of a lawyer.
Because this court extended the time for service based upon plaintiff's showing of good cause, service was timely. As a result, this portion of defendant's motion should be denied.
II. Failure to State a Claim A. Sufficiency of the Pleadings
Defendant seeks to dismiss plaintiff's Amended Complaint pursuant to FRCP 12(b)(6) for failure to state a claim under Title VII, or in the alternative, to make her claim more definite and certain.
Because plaintiff is representing herself, her complaint is are held to a less strict standard than one drafted by a lawyer. Bonner v. Lewis, 857 F.2d 559, 563 (9th Cir 1988). Also see Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 466 (9th Cir 1990) (courts can infer claims from pleadings). Based on this lesser standard, the Amended Complaint sufficiently states a claim under Title VII, especially when read in conjunction with the original Complaint and other exhibits filed in December 2001 (dockets #9 #10).
The Amended Complaint alleges that plaintiff, a female electrician, was treated differently than her male counterparts because she was required to work in an environment hazardous to her health. This is consistent with her May 17, 2001 complaint to Oregon's Bureau of Labor and Industries ("BOLI") which defendant submitted with its Reply. Affidavit of Molly Jo Mullen ("Mullen Aff"), Exhibit 1. That BOLI complaint alleged unlawful employment discrimination under ORS 659.030(1)(b) on the basis of gender because defendant subjected plaintiff to harassment and different treatment by assigning her to dirty and hazardous jobs, giving her an unbalanced workload, excluding her from meetings, and not communicating with her on the radios. The parties agree that this is the same complaint initially investigated by the Equal Employment Opportunity Commission ("EEOC") as a violation of Title VII.
When analyzing similar Title VII complaints, however, the court has liberally applied FRCP 8. In Yamaguchi v. United States Dept. of the Air Force, 109 F.3d 1475, 1481 (9th Cir 1997), the court held: "We cannot conclude . . . that Yamaguchi failed to plead facts which would entitle her to relief on her claim of sex discrimination. . . . Although the complaint was inartfully crafted, in light of the liberal pleading standards, Yamaguchi's complaint presents an adequate claim of sex discrimination." Similarly, in Ortez v. Washington County, 88 F.3d 804, 808 (9th Cir 1996), the Ninth Circuit reversed a district court's dismissal of a Title VII complaint for failure to state a claim because "[i]nstead of requiring only that [the plaintiff] set forth a short and plain statement of his Title VII discrimination claim showing that he was entitled to relief, the district court required him to establish a prima facie case of discrimination." Thus, Ninth Circuit case law favors a tolerant application of FRCP 8 to employment discrimination claims.
FRCP 12(e) allows a party to move for a more definite statement before responding to the pleading when that pleading "is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading[.]" The motion is "`ordinarily restricted to situations where a pleading suffers from unintelligibility rather than want of detail, and if the requirements of the general rule as to pleadings are satisfied and the opposing party is fairly notified of the nature of the claim such motion is inappropriate.'" Sheffield v. Orius Corp., 211 F.R.D. 411, 414-15 (D Or 2002), quoting Tilley v. Allstate Ins. Co., 40 F. Supp.2d 809, 814 (SD WVa 1999); see also Resolution Trust Corp. v. Gershman, 829 F. Supp. 1095, 1103 (ED Mo 1993) ("Rule 12(e) provides a remedy for unintelligible pleadings; it is not intended to correct a claimed lack of detail.").
The Amended Complaint gives adequate notice to defendant as to the specific claims being asserted against it under Title VII. As a result, defendant's motion to dismiss or make more definite or certain the Title VII claim should be denied. B. Statute of Limitations
In its Reply, defendant argued that any claims asserted by plaintiff under Oregon law should be dismissed as time-barred. In addition, at oral argument, an additional issue arose as to whether plaintiff's Title VII claim includes any allegations arising from plaintiff's termination from employment on September 7, 2001.
"Under Title VII, a plaintiff is required to exhaust her administrative remedies by filing a timely charge with the EEOC, or the appropriate state agency, thereby affording the agency an opportunity to investigate the charge." B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir 2002). A plaintiff must file a complaint with the EEOC within 180 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1). If the plaintiff instead first institutes proceedings with a state or local agency (such as BOLI), the period of limitations for filing a charge with the EEOC is extended to 300 days. Id.
Plaintiff filed her initial BOLI complaint on May 21, 2001, several months before her termination. However, she filed her initial Complaint in this court on December 5, 2001, several months after her termination. Although plaintiff's Application to Proceed in Forma Pauperis filed the same day reveals that she was terminated from her employment on September 7, 2001 (docket #1), the original Complaint does not specifically refer to her termination of employment and does not seek any damages from loss of employment. Similarly, none of the additional exhibits filed by plaintiff contain any reference to her termination from employment. Instead, the first allegation relating to plaintiff's termination is found in the Amended Complaint filed on October 28, 2002, referring to lack of resolution concerning the hazardous health conditions which caused "ultimately the loss of employment." This allegation came too late to preserve plaintiff's discrimination claims under ORS Chapter 659A, but not to preserve the same claims under Title VII.
In response to plaintiff's May 21, 2001 complaint, BOLI investigated and issued a "Notice of Right to File a Civil Suit" dated July 6, 2001. Mullen Aff, Exhibit 2. That Notice advised plaintiff that to preserve her allegations made in her BOLI complaint, she had to commence suit "within 90 days of the above mailing date." The 90 day period expired in early October 2001, several months before plaintiff filed this action on December 5, 2001. Therefore, her claims under Oregon law based on the allegations in the May 21, 2001 BOLI complaint are time-barred.
However, the EEOC determination letter, dated September 4, 2001 (Mullen Aff, Ex 3) states that the Title VII claims are barred if not filed within 90 days of receipt of the EEOC determination letter. The filing date of this lawsuit was 92 calendar days after September 4, 2001. However, plaintiff had 90 days to file a lawsuit from the date the EEOC determination letter was " received," not the date it was mailed. Given the presumptive three days for receipt of a notice or paper served by mail, see FRCP 6(e), and absent any proof by defendant that plaintiff received the letter from the EEOC more than 90 days prior to the December 5, 2001, this court will construe the record in plaintiff's favor and assume that her complaint in this court was filed within the 90 day window. Thus, defendant is not entitled to dismissal of the claims alleged in the May 21, 2001 BOLI complaint which are premised upon Title VII.
Plaintiff timely filed a second BOLI complaint on February 25, 2002, alleging unlawful employment discrimination under Oregon law based on retaliation by laying her off September 7, 2001, for filing a civil rights complaint and/or using the Workers' Compensation system. Mullen Aff, Exibit 4. BOLI issued a Notice of Right to File a Civil Suit, advising plaintiff that she had to file suit within 90 days from the mailing date of June 26, 2002. Id., Exhibit 5. That 90 day period expired on or about September 24, 2002, but plaintiff did not file her Amended Complaint until a month later on October 28, 2002 (docket # 23). As a result, plaintiff's claims under Oregon law based on the allegations in her second BOLI complaint are also time-barred.
On September 25, 2002, the EEOC issued a determination letter also finding insufficient evidence to substantiate a violation of Title VII. Supplemental Affidavit of Molly Jo Mullen in Support of Defendant's Reply to its Motion to Dismiss/Make More Definite and Certain. That letter expressly advised plaintiff that if she wished to pursue the action further, she must file suit within 90 days, or lose the right to file suit. Id. Because plaintiff filed her Amended Complaint well within the 90 day window from the date of the second EEOC determination letter, her Title VII claim, including her claim for termination of her employment, survives.
RECOMMENDATIONFor the reasons set forth above, Defendants' Motion to Dismiss or Make More Definite and Certain (docket #35) should be GRANTED IN PART AND DENIED IN PART. Plaintiff's claims should be dismissed insofar as they are premised upon a violation of ORS Chapter 659A. In all other respects, the motion should be DENIED. This leaves in place all of plaintiff's sex discrimination claims premised upon a violation of Title VII.
Objections to these Findings and Recommendations, if any, are due July 12, 2004. If no objections are filed, then the Findings and Recommendations will be referred to a district court judge and go under advisement on that date.
If objections are filed, then a response is due within 10 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will be referred to a district court judge and go under advisement.