Baker v. Maricle Industries, Inc.

          OPINION AND ORDER

          Ann Aiken United States District Judge.

         INTRODUCTION

         In this action, plaintiff Justin Baker asserts that his former employer, defendant ServiceMaster Cleaning Specialists, violated the Americans with Disabilities Act and Oregon employment discrimination statutes by unlawfully terminating plaintiff. Plaintiff also seeks to hold ServiceMaster Cleaning Specialists and its corporate president, defendant Scott Maricle, liable under Or. Rev. Stat. § 659A.030(1)(f) for firing plaintiff on the basis that plaintiff opposed unlawful employment practices and Or. Rev. Stat. § 659A.030(1)(g) for aiding and abetting an unlawful employment practice. Mr. Maricle^[1] moves for partial summary judgment on three grounds: 1) plaintiff failed to exhaust administrative remedies because his amended complaint with Bureau of Labor and Industries (BOLI) naming Mr. Maricle as a respondent is void; 2) plaintiff fails to state a claim that Mr. Maricle aided and abetted ServiceMaster Cleaning Specialists as a matter of law; and 3) plaintiffs claim that Mr. Maricle violated Or. Rev. Stat. § 659A.030(1)(f) is deficient as a matter of law since that provision does not apply to individual employees. For the reasons set out below, the Court DENIES defendant's amended motion for summary judgment (doc. 22).

         BACKGROUND

         Plaintiff was a reservist with the United States Air Force and served in Afghanistan before he started working for ServiceMaster Cleaning Specialists as a water technician on August 12, 2013. Ross Decl. Ex. 1 at 19 Jan. 13, 2017; PL's Resp. Br. to Def's Mot. Summ. J. 2 (doc. 18). Plaintiff received a diagnosis of post-traumatic stress disorder (PTSD) after his discharge from the Air Force. Ross Decl. Ex. 1 at 151 Jan. 13, 2017.

         On October 24, 2014, plaintiff claims he overheard a conversation between Mr. Maricle and plaintiffs project manager, Andrew McCabe, where Mr. Maricle made offensive remarks regarding plaintiffs PTSD. Id. In that conversation, Mr. Maricle allegedly said plaintiff "needs to get over his bullshit" in reference to plaintiffs PTSD. Id. at 15. Shortly thereafter, Mr. Maricle and Mr. McCabe called plaintiff into a meeting. Id. at 14. Although the parties dispute whether ServiceMaster Cleaning Specialists terminated plaintiff or plaintiff voluntarily left his employment, October 24, 2014, was plaintiffs last day with ServiceMaster Cleaning Specialists. Id. at 77-78 & 151.

         Plaintiff alleges Mr. Maricle continued making disparaging remarks even after the termination of plaintiff s employment. Id. at 152. Ultimately, plaintiff credits discrimination on the basis of his perceived and actual disability and retaliation for initiating a complaint of a hostile work environment as the reasons for his termination. Id.

         STANDARD

         Summary judgment is appropriate when the evidence shows "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment must first identify the parts of the record "which it believes demonstrate the absence of a genuine issue of material fact." Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009) (quotation marks omitted). Should the moving party meet this initial burden, "the burden shifts to the non-moving party to set forth . . . specific facts showing that there is a genuine issue for trial." Id. at 928. On a motion for summary judgment, a court views "the evidence in a light most favorable to the non-moving party[.]" Id. at 927. Plaintiffs claim will survive summary judgment if there is "evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict[.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252(1986).

         DISCUSSION

         I. Plaintiff's Amended BOLI Complaint

         Plaintiff may pursue in this lawsuit only those claims adequately raised in his complaint with BOLI.^[2] Defendant seeks to dismiss Mr. Maricle from this case on the basis that 1) plaintiff failed to abide by the one year statute of limitation to initiate a complaint against Mr. Maricle, so plaintiffs claim is time-barred; 2) plaintiff should have filed a new BOLI complaint rather than amend his existing complaint when he added statutory references that could hold Mr. Maricle liable as a respondent; and 3) plaintiff failed to comply with Or. Rev. Stat. § 659A.820(2) by submitting an undated and unsigned amendment. Plaintiff responds by arguing defendant's assertions find no support in the law.

         First, defendant argues that plaintiff did not name Mr. Maricle as a respondent in his initial complaint, and that the amended complaint naming Mr. Maricle cannot stand as a matter of law because the one-year statute of limitations expired on October 24, 2015. Contrary to defendant's assertion, plaintiffs initial BOLI complaint identified both ServiceMaster Cleaning Specialists and Mr. Maricle as respondents. Ross Decl. Ex. 1 at 154 Jan. 13, 2017. The cover letter enclosed with plaintiffs BOLI complaint also identified Mr. Maricle as a respondent. Id. at 153. Even if plaintiff had not listed Mr. Maricle as a respondent, Or. Rev. Stat. § 659A.820's one-year deadline would not bar BOLI from identifying, through its investigation, "additional persons" who "should be named as respondents in the complaint[.]" Or. Rev. Stat. § 659A.835(3). Here, plaintiff amended his complaint on April 7, 2016, before BOLI concluded its investigation on June 10, 2016. Ross Decl. Ex. 1 at 6 Jan. 13, 2017.

         Second, defendant suggests that because plaintiffs claims against Mr. Maricle arise under statutes not cited in the initial BOLI complaint, plaintiff was required to file a new complaint rather than amend his old one. To the contrary, BOLI does not require plaintiffs to identify statutes that give rise to their complaints. See Or. Rev. Stat. § 659A.820. Furthermore, plaintiff is not trying to allege new facts through his amendment. Cf. Or. Admin. R. 839-003-0040(3) ("If new facts are alleged, the aggrieved person must file a new complaint meeting the standards provided in Or. Admin. R. 839-003-0005(5)."). Plaintiffs amendment merely clarifies his intent to pursue claims ...