United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Aiken, United States District Judge.
La Quinta Worldwide, LLC ("LQ Worldwide") and LQ
Management, LLC ("LQ Management") (collectively,
"LQ defendants"), move this Court for an order
dismissing all claims brought against them in plaintiff,
Jessica Bernal Wickliffs Second Amended Complaint
("SAC"), (doc. 22). For the reasons set forth
herein, defendants' Motion to Dismiss is GRANTED in part
and DENIED in part.
case arises out of plaintiffs past employment at La Quinta
Inn Albany. Plaintiff alleges that while employed at La
Quinta Inn Albany as a housekeeper and receptionist, she was
sexually assaulted by her supervisor, defendant, Ashoo Ohri
("Ohri"), and that "as a result of the sexual
assault, [she] was constructively discharged from her
employment" by OHG in violation of Title VII of the
Civil Rights Act and Oregon's anti-discrimination law.
SAC ¶ 54 (doc.19). It is undisputed that, plaintiffs
direct employer while working at La Quinta Albany was
defendant, Oregon Hospitality Group ("OHG").
Plaintiff also alleges that LQ Worldwide is vicariously
liable for Ohri's on-the-job sexual battery and OHG's
unlawful employment practice. Id.
September 9, 2016, plaintiff filed her original complaint
with this Court asserting three claims for relief: (1)
discrimination based on sex; (2) sexual battery; and (3)
intentional infliction of emotional distress (doc. 1). On
September 19, 2016, 1 granted plaintiff leave to amend her
complaint (docs. 3-4). On October 31, 2016, plaintiff filed
her First Amended Complaint ("FAC5). On December 30,
2016, LQ defendants filed a Fed.R.Civ.P. 12(b)(6) motion to
dismiss all claims brought against them in plaintiffs FAC
(doc. 11). On April 21, 2017, I granted LQ defendants'
motion to dismiss all claims brought against them. In my
opinion (doc. 18), I held that plaintiffs FAC did "not
specify the claims for which LQ defendants are vicariously
liable" and that this "omission [was] fatal because
the standard for vicarious liability is different for each
substantive claim." However, I granted plaintiff leave
to file an amended complaint consistent with that opinion.
19, 2017, plaintiff filed the SAC (doc. 19) asserting eight
claims for relief, including: (1) sexual battery against
Ohri; (2) intentional infliction of emotional distress
against Ohri; (3) violation of Title VII, 42 U.S.C. §
2000e et. seq., against Ohri based on the alleged
sexual assault and resulting constructive discharge; (4)
discrimination based on sex in violation of Or. Rev. Stat.
§ 659A.030 against OHG based on the alleged sexual
assault and resulting in constructive discharge; (5)
vicarious liability against OHG for Ohri's sexual battery
of plaintiff; (6) vicarious liability against LQ defendants
for Ohri's sexual battery of plaintiff under a
"single employer" theory; (7) vicarious liability
against LQ defendants for Ohri's sexual battery of
plaintiff under a "joint employer" theory; and (8)
vicarious liability against LQ defendants for OHG's
alleged discrimination based on sex in violation of Or. Rev.
Stat. § 659A, 030 because of the LQ defendants'
agency or apparent agency relationship with OHG.
2, 2017, LQ defendants filed the present motion to dismiss
all claims brought against them (claims 6-8) in the SAC
plaintiff "fails to state a claim upon which relief can
be granted, " the court must dismiss the action. Fed. R.
Civ, P. 12(b)(6). To survive a motion to dismiss, the
complaint must allege "enough facts to state a claim to
relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007), For purposes
of a motion to dismiss, the complaint is liberally construed
in favor of the plaintiff, and its allegations are taken as
true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th
Cir. 1983). Bare assertions, however, that amount to nothing
more than a "formulaic recitation of the elements"
of a claim "are conclusory and not entitled to be
assumed true." Ashcroft v. Iqbal, 556 U.S. 662,
681 (2009). Rather, to state a plausible claim for relief,
the complaint "must contain sufficient allegations of
underlying facts" to support its legal conclusions.
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011),
cert, denied, 132 S.Ct. 2101 (2012).
Plaintiff's Sixth and Seventh Claims for Relief
captions her sixth and seventh claims as claims to relief
under Title VII of the Civil Rights Act of 1964, which makes
it unlawful for an employer to "discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or
national origin . ., ." 42 USC § 2000e-2(a)(1)
(emphasis added). She does attempt to establish that for the
purposes of a Title VII claim that LQ defendants constitute a
single employer of Ohri or, alternatively, that they
constitute a joint employer of Ohri with OHG. However,
plaintiff alleges no facts regarding sex discrimination under
these claims in the SAC. Rather, she avers in her sixth claim
that "[i]n its capacity as an employer, OHG is a
co-employer with LQ defendants, and LQ defendants are
vicariously liable for Ohri's sexual battery" and in
her seventh claim for relief plaintiff claims that "LQ
defendants were vicariously liable for the sexual battery by
Ohri." SAC ¶ 67, ¶ 74 (doc. 19).
inconsistency creates confusion about which theory of
liability plaintiff seeks to pursue under these claims. The
only facts alleged in the SAC dealing employment
discrimination appear in claims against OHG and are not
alleged against LQ defendants. SAC ¶ 54 (doc. 19).
However, plaintiff seems to clear up this confusion in her
briefing on the present motion by stating that LQ defendants
are "vicariously liable for Ohri's sexual
battery of plaintiff under a 'single employer'
theory of liability" and under "'joint
employer' theory of liability." Pl's. Resp, Mot.
to Dismiss 5 (doc. 24) (emphasis added).
indicated in plaintiffs SAC (doc. 19), sexual battery is an
intentional tort. Therefore, I must examine the claim for an
employer's liability for the intentional action of an
employee using the appropriate standard. The employer of an
individual may be held vicariously liable for both the
negligent and intentional torts of the individual.
Burlington Industries, Inc. v. Ellerth, 524 U.S.
742, 756 (1998). The standard for an employer being