United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
F. BECKERMAN United States Magistrate Judge
Michael Lyzer (“Plaintiff”) filed this action
against Defendant Caruso Produce, Inc.
(“Defendant”) alleging claims of discrimination
and retaliation under federal and state law, as well as state
wage and hour law violations. Defendant filed a motion to
dismiss Plaintiff's complaint for failure to state a
claim, pursuant to Federal Rule of Civil Procedure
(“Rule”) 12(b)(6). (Def. Mot. to Dismiss.)
Plaintiff opposes the motion. (Resp. Mot. to Dismiss.)
Court has jurisdiction under 28 U.S.C. § 1332. For the
reasons that follow, the district judge should deny
worked as a truck driver, delivering produce for Defendant
from 2014 to 2016. (Compl. ¶¶ 9, 39.) Over the
course of Plaintiff's employment, some of Defendant's
employees made comments to Plaintiff that he interpreted as
racial slurs and threats of violence. (Compl. ¶¶
15, 18, 26, 29-30, 32, 35.) On a number of occasions,
Plaintiff reported to work and was instructed to “clock
out” and wait nearby as a truck was loaded or otherwise
prepared for delivery. Plaintiff was not compensated for this
time. (Compl. ¶¶ 12, 20-22, 28.)
suffers from prostate cancer. (Compl. ¶ 39.) The
condition causes Plaintiff to urinate frequently.
(Id.) Plaintiff's supervisor observed that
Plaintiff had urinated in a receptacle in his truck.
(Id.) The supervisor instructed Plaintiff that this
was not permitted, and determined that it was unsafe for
Plaintiff to continue driving. (Compl. ¶ 40.)
complained to Defendant and also filed a complaint with
Oregon's Bureau of Labor and Industries
(“BOLI”). (Compl. ¶¶ 17, 29, 39.) After
filing the BOLI complaint, “defendant suspended and
terminated plaintiff's employment in retaliation for
filing a complaint with BOLI, opposing race discrimination,
and reporting that he suffered from a disability.”
(Compl. ¶ 39.)
filed a complaint alleging employment discrimination, in
violation of federal and state civil rights and disability
laws, and state wage and hour laws. 42 U.S.C. §§
2000e, 12112; Or. Rev. Stat. §§ 652.140, 652.150,
659A.030, 659A.112. Defendant filed a motion to dismiss all
claims, pursuant to Rule 12(b)(6).
STANDARD OF REVIEW
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a). A court may grant a motion
to dismiss for failure to state a claim only when there is no
cognizable legal theory to support the stated claim, or when
the complaint does not allege enough facts to support a
facially plausible claim for relief. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient, the court will take as
true all material factual allegations and construe them in
the light most favorable to the plaintiff. NL Indus.,
Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The
court will draw all reasonable inferences from the factual
allegations in the plaintiff's favor. Newcal Indus.
v. Ikon Office Sol., 513 F.3d 1038, 1043 n.2 (9th Cir.
2008). The court need not credit legal conclusions or
“threadbare recitals of the elements of a cause of
action.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555).
moves to dismiss Plaintiff's fifth and sixth claims for
failure to allege the necessary elements of a disability
discrimination claim under either federal or state law.
Specifically, Defendant argues that Plaintiff does not plead
sufficient facts to show that his prostate cancer
“substantially limits” a life activity, ...