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Wickliff v. LA Quinta Worldwide, LLC

United States District Court, D. Oregon, Eugene Division

October 5, 2017

JESSICA BERNAL WICKLIFF, Plaintiff,
v.
LA QUINTA WORLDWIDE, LLC, a foreign Limited Liability Company; LQ MANAGEMENT, LLC, a foreign Limited Liability Company; OREGON HOSPITALITY GROUP, LLC, a Washington Limited Liability Company; And ASHOO OHRI, an individual, Defendants.

          OPINION AND ORDER

          Ann Aiken, United States District Judge.

         Defendants 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.

         BACKGROUND

         This 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.

         On 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.

         On May 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.

         On June 2, 2017, LQ defendants filed the present motion to dismiss all claims brought against them (claims 6-8) in the SAC

         STANDARD OF REVIEW

         Where a 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).

         DISCUSSION

         I. Plaintiff's Sixth and Seventh Claims for Relief

         Plaintiff 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).

         This 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).

         As 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 vicariously ...


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