ARMI B. SANCHEZ, Plaintiff,
PURINA ANIMAL NUTRITION, LLC; and LAND O'LAKES, INC., a Minnesota corporation; Defendants.
Elizabeth Farrell Oberlin, P.O. Box 3614 Hillsboro, OR. Attorney for Plaintiff.
Ryan S. Gibson, Amy Joseph Pedersen, Stoel Rives LLP, Portland, OR, Attorneys for Defendant.
FINDINGS & RECOMMENDATION ON MOTION TO DISMISS
DENNIS JAMES HUBEL, Magistrate Judge.
The plaintiff Armi B. Sanchez is an "Asian/Pacific Islander." Dkt. #1, ¶ 10. She brings this action against her former employer Land O'Lakes, Inc. for "race discrimination, hostile work environment, and retaliation, " under federal and Oregon law. Id., ¶ 1. The case is before the court on Land O'Lakes's motion, pursuant to Federal Rule of Civil Procedure 12 (b) (6), to dismiss the Complaint for failure to state a claim upon which relief can be granted. Dkt. #9. The motion is fully briefed, and the court heard oral argument on the motion on November 4, 2013. The undersigned submits the following findings and recommended disposition of the motion pursuant to 28 U.S.C. § 636(b) (1)(B).
STANDARDS FOR MOTIONS TO DISMISS
Chief Judge Aiken of this court explained the standard for the court's consideration of a motion to dismiss in Gambee v. Cornelius, No. 10-CV-6265-AA, 2011 WL 1311782 (D. Or. Apr. 1, 2011) (Aiken, C.J.). Judge Aiken observed:
Under Fed.R.Civ.P. 12(b) (6), a complaint is construed in favor of the plaintiff, and its factual allegations are taken as true. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). "[F]or a complaint to survive a motion to dismiss, the non-conclusory factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, [556 U.S. 662, 678, ] 129 S.Ct. 1937 , 1949[, 173 L.Ed.2d 868] (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563[, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929] (2007). "[G]enerally the scope of review on a motion to dismiss for failure to state a claim is limited to the Complaint." Daniels-Hall, 629 F.3d at 998.
Id. at *2.
In reviewing the sufficiency of a Complaint for purposes of a motion to dismiss, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). To survive a motion to dismiss for failure to state a claim, the plaintiff is not required to make "detailed factual allegations, " but must allege sufficient factual allegations "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007).
"As a general matter, a district court may not consider any material outside of the pleadings when ruling on a Rule 12(b) (6) motion." O'Connell-Babcock v. Multnomah County, Oregon, No. 08cv-459-AC, slip op., 2009 WL 1139441 at *4 (D. Or. Apr. 24, 2009) (King, J.) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)). However, the Ninth Circuit recognizes an exception to this rule that allows consideration of documents "whose contents are alleged in a [pleading] and whose authenticity no party questions, but which are not physically attached to the... pleading.'" Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998) (quoting Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994)), superseded by statute on other grounds as recognized in Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 681 (9th Cir. 2006); Vanguard Prods. Group v. Merchandising Technologies, Inc., slip op., 2008 WL 939041, at *3 (D. Or. Apr. 3, 2008) (Brown, J.) (same; quoting Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)).
Land O'Lakes has submitted a declaration from Sanchez's supervisor Kay Loehr, with attached exhibits consisting of a weekly memo from Sanchez to Loehr, and an e-mail from Loehr to Land O'Lakes's Human Resources Manager Lisa Kuemper. Dkt. #11, Exs. A & B. According to Land O'Lakes, Sanchez refers to the weekly memo (Dkt. #11-1) in paragraph 15 of her Complaint, where she alleges: "On or around August 24, 2012, Plaintiff complained in writing to Loehr about the hostile work environment created by co-worker, Olivia Bowman.... Bowman had yelled at a non-Caucasian co-worker, calling her a mixed-breed.'" Dkt. #1, ¶ 15. Sanchez does not address Land O'Lakes's argument in her brief. See Dkt. #15. After reviewing Exhibit A to Loehr's Declaration, Dkt. #11-1, the court finds the document is consistent with Sanchez's allegation regarding her written complaint to Loehr. In the absence of any contrary assertion by Sanchez, the court finds the weekly memo is a document of the type contemplated by the Ninth Circuit in crafting the exception discussed by the Parrino court, and therefore, the court will consider that document in the context of Land O'Lakes's motion to dismiss.
The e-mail, however, is not mentioned, either specifically or by allusion, in Sanchez's Complaint, and the court declines to consider that evidence in the context of the current motion.
Sanchez worked for Land O'Lakes for somewhere between 23 months and six years. At the time she was terminated at the end of October 2012, Sanchez "was working as a Customer ...