United States District Court, D. Oregon
D. Fargey, Fargey Law PC, Of Attorneys for Plaintiff.
O'Kasey and Jonathan Rue, Hart Wagner LLP, Of Attorneys
OPINION AND ORDER
Michael H. Simon, United States District Judge.
Sarena Daniel filed this lawsuit in state court against her
employer, Defendant Oregon Health & Sciences University
(“OHSU”), and her former supervisor at OHSU,
Defendant David Scott (“Scott”). Plaintiff
alleges that Scott sexually harassed her and that OHSU and
Scott retaliated against her after she reported the alleged
sexual harassment. Defendants removed the case to federal
court and now move for partial summary judgment. For the
following reasons, Defendants' motion is granted in part
and denied in part.
is entitled to summary judgment if the “movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party has the burden of
establishing the absence of a genuine dispute of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The court must view the evidence in the light most
favorable to the non-movant and draw all reasonable
inferences in the non-movant's favor. Clicks
Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257
(9th Cir. 2001). Although “[c]redibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge . . . ruling on a motion for summary
judgment, ” the “mere existence of a scintilla of
evidence in support of the plaintiff's position [is]
insufficient . . . .” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252, 255 (1986). “Where the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
and quotation marks omitted).
August 2014, OHSU hired Plaintiff to work as a cashier in its
Food & Nutrition Department. Scott trained Plaintiff
during her initial probationary period and was her first
supervisor. Almost immediately after Plaintiff went to work
for OHSU, she was uncomfortable working with Scott. At the
time Plaintiff began with OHSU, Scott was already involved in
a sexual relationship with another OHSU supervisor, who was
married. Scott sought to leverage his influence and position
over Plaintiff to coerce her into a similar sexual
relationship. Shortly after Plaintiff began at OHSU, Scott
told her that he would be “nice” to her, if she
wanted Scott to be her “sugar daddy.”
role in training Plaintiff often required her to be alone
with Scott. On several occasions in November 2014, Scott
inappropriately touched Plaintiff, made crude remarks and
gestures to her, and asked her to engage in inappropriate
acts with him. Plaintiff declined Scott's advances, but
did not formally complain about Scott's behavior until
after the conclusion of her probationary period.
March 2, 2015, Plaintiff filed a complaint against Scott with
OHSU's Action and Employment Opportunity Office
(“AEOO”), which conducted an investigation.
Shortly thereafter, OHSU reduced Plaintiff's hours,
placed Scott on leave, and transferred him away from
supervising Plaintiff's day-to-day responsibilities.
Scott, however, continued to interact with Plaintiff.
21, 2015, Scott attempted to “run over” Plaintiff
with a cart, prompting Plaintiff to file another complaint
with the AEOO later that day. According to Plaintiff, OHSU
responded to her new complaint by falsely accusing her of
engaging in inappropriate behavior and disciplining her.
Since 2015, although Scott no longer works in close physical
proximity to Plaintiff on a daily basis, he still comes to
her work area from time to time. When he does, Scott
continues to “leer and stare” at Plaintiff.
the period of Scott's alleged sexual harassment of
Plaintiff, she began to suffer severe migraine headaches and
sought treatment from a doctor. In May 2015, Plaintiff sent
four notes from her doctor to OHSU, requesting an
accommodation. According to Plaintiff, OHSU ignored all four
notes. Plaintiff later obtained a fifth note from her doctor
and requested assistance from her union. This prompted OHSU
to change Plaintiff's working conditions. Plaintiff,
however, contends that these changes still were insufficient
because OHSU refused to alter Plaintiff's work schedule
to allow her to obtain needed medical treatment during the
work week. Plaintiff also contends that she continues to
suffer during working hours based on OHSU's refusal to
accommodate her alleged disability. According to Plaintiff,
after she complained about Scott's sexual harassment and
requested accommodation for her migraine headaches, OHSU
placed Plaintiff's job performance under “scrutiny,
” created “fake and false complaints” about
her work, and “sought to discipline” her.
12, 2015, Plaintiff filed a complaint with the U.S. Equal
Employment Opportunity Commission (“EEOC”) about
the alleged sexual harassment. On November 16, 2015,
Plaintiff filed a similar complaint with the Oregon Bureau of
Labor and Industries (“BOLI”). On May, 6, 2016,
BOLI dismissed Plaintiff's complaint and sent her a
right-to-sue letter, giving Plaintiff 90 days from the date
of that letter in which to commence a lawsuit. On June 27,
2016, the EEOC also dismissed Plaintiff's complaint and
sent her a right to sue letter, giving Plaintiff 90 days from
her receipt of that letter in which to commence a lawsuit.
addition, Plaintiff, through her counsel, sent two letters to
OHSU. Plaintiff's first letter was dated July 9, 2015.
Plaintiff sent her second letter, dated July 27, 2016, more
than a year later. The parties agree that the letter dated
July 27, 2016, provided Defendants with a tort claim notice
under the Oregon Tort Claims Act (“OTCA”).
September 22, 2016, more than 90 days after the date of the
BOLI right-to-sue letter, Plaintiff filed this lawsuit in
state court. She asserted only claims based on state law,
including a claim that alleged a violation of Or. Rev. Stat.
(“ORS”) § 659A.199. Defendants moved for summary
judgment, arguing that Plaintiff's claims were untimely
and also that Plaintiff could not assert a claim under ORS
659A.199 because she is a public sector employee and that
statute only applies to private sector
employees. The state court granted Defendants'
motion for summary judgment. The state court dismissed
Plaintiff's claim under § 659A.199 without
explanation, but expressly dismissed all of her other claims
as untimely. The state court also gave Plaintiff leave to
amend her complaint to assert federal claims or any other
state claims not subject to the court's ruling.
March 15, 2017, Plaintiff filed her amended complaint,
asserting four claims against Defendants. Plaintiff alleges:
(1) sex discrimination in violation of federal law under 42
U.S.C. § 2000e-2(a), (2) retaliation in violation of
federal law under 42 U.S.C. § 2000e-3(a), (3)
retaliation in violation of state law under ORS 659A.203, and
(4) violation of equal protection under 42 U.S.C. §
1983. After Plaintiff filed her amended complaint, Defendants
timely removed the case to federal court.
move for summary judgment against Plaintiff's first three
claims, arguing that they are untimely. Defendants also argue
that Plaintiff's third claim, brought under Oregon law,
should be dismissed for the independent reason that Plaintiff
did not provide OHSU with a timely and sufficient tort claim
notice as required by the OTCA.
42 U.S.C. § 2000e-2(a) and 42 U.S.C. §
alleges that Defendants discriminated against her on the
basis of sex, in violation of 42 U.S.C. § 2000e-2(a),
and retaliated against her for complaining about sexual
harassment, in violation of 42 U.S.C. § 2000e-3(a).
Defendants argue that these claims are untimely because
Plaintiff did not file them within 90 days of her receipt of
the EEOC's letter granting a right to sue. A plaintiff
generally has 90 days after receipt of an EEOC right-to-sue
letter to commence a lawsuit. 42 U.S.C. § 2000e-5(f)(1);
see also Stiefel v. Bechtel Corp., 624 F.3d 1240,
1245 (9th Cir. 2010).
concedes that she did not file her federal claims within 90
days after receiving the EEOC's right-to-sue letter.
Instead, she invokes the relation back doctrine set forth in
Rule 15 of the Federal Rules of Civil Procedure. Plaintiff
argues that her amended complaint “relates back”
to the date of her original pleading, September 22, 2016,
because her amended complaint “asserts a claim . . .
that arose out of the conduct, transaction, or occurrence set
out . . . in the original pleading.” Fed.R.Civ.P.
15(c)(1)(B). Because Plaintiff's federal claims arise
from the same allegations of sexual harassment and
retaliation alleged in her original pleading, these claims