Stephen L. Brischetto and Mathew C. Ellis, Attorneys for Plaintiffs.
Mictchell C. Baker and Alexander A. Wheatley, FISHER & PHILLIPS LLP, Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon, District Judge.
Plaintiffs, Angela Wall and Jennifer Pickett (collectively “Plaintiffs”), maintain this action against Defendant Sentry Insurance (“Sentry” or “Defendant”). Before the Court is Defendant’s Amended Motion to Dismiss (Dkt. 8) Plaintiff Wall’s claim for common law wrongful discharge and Plaintiff Pickett’s claim for common law wrongful constructive discharge. For the reasons discussed below, the Court grants in part Defendant’s motion.
A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Plaintiffs, Angela Wall and Jennifer Pickett, are former employees of Sentry Insurance. Each asserts claims for violations of Or. Rev. Stat. (“ORS”) § 659A.030 and for common law wrongful discharge. Ms. Wall alleges that her general manager, Ford McMurtry, subjected her to unwanted advances and comments of a sexual nature and retaliated against her for opposing his discriminatory practices. Ms. Pickett also alleges that McMurtry subjected her to unwanted sexual advances and comments, to different treatment based upon gender, and to retaliation for opposing unlawful employment practices.
Defendant moves to dismiss both Plaintiffs’ claims for common law wrongful discharge on the grounds that: (1) wrongful discharge is an “interstitial tort” only available if a claimant lacks an adequate statutory remedy; and (2) that ORS § 659A.885(3) provides the full panoply of relief available at common law, thus precluding Plaintiffs from asserting a claim for wrongful discharge.
A. Adequate Statutory Remedy
The Court must decide the oft-raised issue of whether a plaintiff who alleges common law wrongful discharge is precluded from bringing that claim because there is an adequate statutory remedy. Defendant argues that controlling Oregon Supreme Court precedent, as interpreted by a long line of cases in this district, requires a finding that Plaintiffs’ claims for common law wrongful discharge are precluded. Defendant contends that the test for whether a claim for common law wrongful discharge is precluded under Oregon law is disjunctive: it requires a showing that either (1) an existing remedy adequately protects the public interest in question, or (2) the legislature has intentionally abrogated the common law remedies by establishing an exclusive remedy. See Arnold v. Pfizer, Inc., 970 F.Supp.2d 1106, 1145 (D. Or. 2013); Draper v. Astoria Sch. Dist. No. 1C, 995 F.Supp. 1122, 1130-31 (D. Or. 1998). Plaintiff contends that the appropriate test, as articulated by the Oregon Court of Appeals, is conjunctive: the Defendant must demonstrate both that the provided remedy is adequate and that the legislature intended the statute to abrogate preexisting common law remedies. See Kemp v. Masterbrand Cabinets, Inc., 257 Or.App. 530, 537-38 (2013); Olsen v. Deschutes County, 204 Or.App. 7, 14 (2006). See also Neighorn v. Quest Health Care, 870 F.Supp.2d 1069, 1106 (D. Or. 2012) (discussing cases applying the disjunctive and conjunctive tests).
Plaintiffs concede in their Response to Defendant’s Motion to Dismiss (Dkt. 9) that ORS § 659A.885(3) provides the full range of legal and equitable remedies available under the common law for claims of sex discrimination. Pl.’s Opp’n at 3-4. Accordingly, the only relevant question for the Court is whether Oregon law requires the conjunctive test articulated by ...