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Lyzer v. Caruso Produce, Inc.

United States District Court, D. Oregon

January 29, 2018

MICHAEL LYZER, Petitioner,
v.
CARUSO PRODUCE, INC., Defendant.

          FINDINGS AND RECOMMENDATION

          STACIE F. BECKERMAN United States Magistrate Judge

         Plaintiff 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.)

         This Court has jurisdiction under 28 U.S.C. § 1332. For the reasons that follow, the district judge should deny Defendant's motion.

         BACKGROUND [1]

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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).

         ANALYSIS

         I. STANDARD OF REVIEW

         A 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).

         II. DISCUSSION

         A. Qualifying Disability

         Defendant 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, ...


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