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Daniel v. Oregon Health & Sciences University

United States District Court, D. Oregon

August 10, 2017


          Micah D. Fargey, Fargey Law PC, Of Attorneys for Plaintiff.

          Karen O'Kasey and Jonathan Rue, Hart Wagner LLP, Of Attorneys for Defendants.


          Michael H. Simon, United States District Judge.

         Plaintiff 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.


         A party 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).


         In 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.”

         Scott's 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.

         On 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.

         On July 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.

         During 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.

         On July 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.

         In 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”).

         On 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.[1] 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.[2] 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.

         On 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.


         Defendants 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.[3]

         A. 42 U.S.C. § 2000e-2(a) and 42 U.S.C. § 2000e-3(a)

         Plaintiff 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).

         Plaintiff 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 ...

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