United States District Court, D. Oregon, Eugene Division
JUSTIN J. BAKER; Plaintiff,
MARICLE INDUSTRIES, INC., dba SERVICEMASTER CLEANING SPECIALISTS, and SCOTT N. MARICLE, Defendants.
OPINION AND ORDER
Aiken United States District Judge.
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 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).
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.
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.
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.
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).
Plaintiff's Amended BOLI Complaint
may pursue in this lawsuit only those claims adequately
raised in his complaint with BOLI. 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.
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.
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