United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
JOHN V. ACOSTA, Magistrate Judge.
Plaintiff Travis Pierre Stewart ("Stewart"), a Washington resident, brings this action against defendant Rock Tenn CP, LLC and Rock Tenn Services, Inc (collectively "Rock Tenn"). Stewart alleges Rock Tenn violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e through 2000e-17; the Civil Rights Act of 1866 ("CRA"), 42 U.S.C. § 1981; the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601-2654; the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101-12213; and Oregon state law prohibiting employment discrimination. Stewart seeks declaratory, injunctive, and monetary relief, including attorney's fees and costs.
Rock Tenn moves to dismiss Stewart's first, second, third, and eighth claims for relief (the "federal claims"). Rock Tenn argues the federal claims in the Complaint are untimely because Stewart failed to establish he commenced his action within 90 days of receiving a Notice of Right to Sue from the Equal Employment Opportunity Commission ("EEOC"). Similarly, Rock Tenn argues Stewart's fifth and ninth claims (the "state claims") in the Second Amended Complaint fail to state a claim because Stewart did not establish he commenced the action within 90 days of receiving a Notice of Right to Sue from the Oregon Bureau of Labor and Industry ("BOLI"). Rock Tenn does not move to dismiss Stewart's fourth, sixth, and seventh claims. Stewart opposes Rock Tenn's motion to dismiss and moves for leave to amend his complaint. In addition, Stewart requests that the court toll the commencement of the 90-day filing period for the federal claims and apply federal procedural rules to preserve his state claims.
The court grants Rock Tenn's Motion to Dismiss because Stewart did not plead facts sufficient to establish the timeliness of his claims or raise a colorable argument for tolling the ninety-day filing deadline. Furthermore, the court denies Stewart's motion to amend without prejudice because the Proposed Supplemental and Third Amended Complaint ("PAC") fails to cure the defects in the Second Amended Complaint.
Before his termination, Stewart, an African-American, worked for Rock Tenn. (Second Am. Compl. ¶ 9, Dkt. No. 32.) Starting on or about December 2011, Stewart's shift supervisor allegedly referred to Stewart using racial slurs, including calling him "Buckwheat" and "Radio, " a reference to a developmentally disabled African-American character from a movie. (Id. at ¶ 11, 22.) Rock Tenn suspended Stewart in February and June 2012, allegedly for opposing his supervisor's racial discrimination and for taking medical leave to address his severe allergies. (Id. at ¶ 14, 27.) In September 2012, Stewart alleges Rock Tenn discharged him because he is disabled, because he took protected medical leave, and in retaliation for raising concerns about Rock Tenn's discriminatory practices. (Id. at ¶ 26.) According to Stewart, Rock Tenn stated the reason for his discharge was excessive absences. (Id. ) In September 2012, Stewart provided Rock Tenn with documentation of his medical leave but was not reinstated until February 2014. (Id. at ¶ 28.)
In response, Stewart co-filed a complaint with the EEOC and BOLI alleging discrimination and retaliation. (Id. at ¶ 7.) Stewart claims he received a Notice of Right to Sue from the EEOC authorizing him to file this action. (Id. at ¶ 8.) Stewart filed his original complaint in federal court on December 6, 2013. (Compl., Dkt. No. 1.) According to Stewart, he filed the original complaint within ninety days of receiving a Notice of Right to Sue from BOLI. Id. On June 10, 2014, he filed his Second Amended Complaint, which Rock Tenn now moves to dismiss in part. (Second Am. Compl.)
I. Rule 12(b)(6) Motion to Dismiss
A well-pleaded complaint must have a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a) (2014). A motion pursuant to FRCP 12(b)(6) should be granted if the allegations in the complaint are insufficient to state a claim for relief. FED. R. CIV. P. 12(b)(6) (2014). In Bell v. Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Court explained the necessity of including sufficient facts in the pleading to give proper notice of the claim and its basis: "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitlement to relief requires more than labels and conclusions, and formulaic recitation of the elements of a cause of action will not do." Id. at 555 (alteration omitted). With this in mind, the Court noted "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Later, in Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009), the Court illuminated two principles underlying its decision in Twombly. First, the proposition that a court must accept all allegations in a complaint does not force a court to accept as true all legal conclusions set forth a pleading. Id. at 678. Second, the complaint must contain a plausible, not merely possible, claim for relief. Id. at 679. The court clarified that "[d]etermining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007)). Further, the court concluded, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to entitlement to relief." Id.
On a motion to dismiss for failure to state a claim, the court must take as true all allegations of material fact and construe them in the light more favorable to the nonmoving party. Am. Family Ass'n, Inc. v. City & County of S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). The court's review is limited to the face of the complaint, any documents referenced in the complaint, and those matters which the court may properly take judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). Otherwise, as a general rule, a district court may not consider any material outside the pleadings when ruling on a 12(b)(6) motion to dismiss. Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001).
II. Rule 15 Motion to Amend
After amending a pleading once as a matter of course, a plaintiff may amend his "pleading only with the opposing party's written consent or the court's leave." FED.R.CIV. P. 15(a) (2013). "The court should freely give leave when justice so requires." Id. "Although the rule should be interpreted with extreme liberality.' leave to amend should not be granted automatically." Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1990) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). A trial court may deny the motion if permitting amendment would prejudice the opposing party, produce an undue delay in litigation, result in futility for lack of merit, is sought by plaintiffs in bad faith or with a dilatory motive, or the plaintiffs have filed numerous amended complaints. Foman v. Davis, 371 U.S. 178, 182 (1962); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Prejudice to the opposing party carries the "greatest weight" in determining whether to deny leave to amend, but futility alone may justify denying leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.2003). Whether to grant leave to amend lies within the sound discretion of the trial court. Webb, 655 F.2d at 979. In exercising this discretion, however, the court "must be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities." Id.
I. Motion to ...