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Barrett v. Kaiser Foundation Health Plan of The Northwest

United States District Court, D. Oregon

July 30, 2015


William J. Macke, WILLIAM J. MACKE & ASSOCIATES, 4411 NE Tillamook Street, Portland, OR 97213. Of Attorneys for Plaintiff.

Laura E. Rosenbaum and Edward A. Piper, STOEL RIVES LLP, 900 SW Fifth Avenue, Suite 2600, Portland, OR 97204. Of Attorneys for Defendant.


MICHAEL H. SIMON, District Judge.

Plaintiff David Barrett ("Barrett") brings this action against Kaiser Foundation Health Plan of the Northwest ("Kaiser"). Barrett alleges that Kaiser, Barrett's former employer, discriminated against him because of his race. Before the Court is Kaiser's Motion to Dismiss Barrett's Second Amended Complaint. Dkt. 18. For the reasons that follow, Kaiser's motion is denied.


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 plainitff'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)).


Barrett is African American. He was formerly employed by Kaiser as a courier. On November 1, 2012, Barrett performed a specimen pickup at a laboratory at Oregon Health Science University ("OHSU"). After this pickup, an OHSU employee complained that Barrett had behaved unprofessionally. The employee complained that Barrett commented that if the employee performed splits naked, her "man" would like it. Another OHSU employee stated that Barrett was not threatening but appeared to be "saucy."

On December 3, 2012, Barrett had a meeting with his supervisor Thomas Lear and a human resources officer, Nate Taylor, about the incident at OHSU. In a letter issued that same day, Barrett denied having made the comment about doing the splits naked, but admitted that he was doing splits as a stretching exercise to help his back pain. He stated that if his doing the splits had offended anyone, he would do them in private in the future.

On January 23, 2013, Kaiser disciplined Barrett for the incident with a level four corrective action form for "Comments and/or actions that were inappropriate towards another party creating a hostile environment." Later that day, Barrett met with attorneys for Kaiser to discuss a different topic, whether Barrett believed that an African American former employee, Duane Johnson, had been treated differently by Kaiser because of his race. Barrett stated that he believed Mr. Johnson had been treated differently.

On January 31, 2013, Kaiser disciplined Barrett with a level four corrective action form for generalized performance concerns and placed Mr. Barrett on "last chance" status. On May 20, 2013, Kaiser performed a follow-up review on Barrett. The level four corrective action form was continued and Barrett again was placed on "last chance" status.

Barrett was out on medical leave from August 16, 2013 to September 10, 2013. On September 19, 2013, Mr. Lear and Mr. Taylor placed Barrett on administrative leave for alleged violations of his last chance agreement. On September 22, 2013, Barrett again went on medical leave, which included surgery and was anticipated to last until January 14, 2014.

On November 23, 2013, Kaiser informed Barrett that his 90 days of medical leave with job protection had expired and that Kaiser could post and fill Barrett's job. On December 13, 2013, Barrett met with Mr. Lear and Mr. Taylor and signed a resignation agreement. On December 18, 2013, Barrett ...

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