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James v. Sapa Profiles, Inc.

United States District Court, D. Oregon

January 30, 2018

JOHN FREDERICK JAMES, Plaintiff,
v.
SAPA PROFILES, INC., Defendant.

          JOHN FREDERICK JAMES Plaintiff, Pro Se.

          FRANCIS T. BARNWELL MEGAN J. CROWHURST Attorneys for Defendant.

          OPINION AND ORDER

          ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE.

         This matter comes before the Court on Defendant's Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) Motion (#28) to Dismiss Plaintiff's Fourth Amended Complaint. For the reasons that follow, the Court GRANTS Defendant's Motion to Dismiss Plaintiff's claims for violation of Title VII and Oregon Revised Statutes § 659A.030(1)(f).

         BACKGROUND

         On May 4, 2015, Defendant Sapa Profiles, Inc., hired Plaintiff John Frederick James as a general laborer in the coatings department of its Portland facility.

         In his Third Amended Complaint Plaintiff alleged the following facts:

(1) In July 2015 he reported to his manager and a co-worker that “the sweeper” batteries had not been changed even though the “green card sheet” stated they had been changed on June 18, 2015.
(2) In August 2015 Plaintiff provided plans to co-workers to fix the spray booth that was over-spraying, and his coworkers “wadded [them] up and [threw] them away.”
(3) On October 10, 2015, a coworker told Plaintiff not to come to work the following day. When Plaintiff stated he planned to come to work the next day, his coworker responded: “Boy, you are just looking to get hurt aren't you?”
(4) On October 10, 2015, Plaintiff telephoned the warehouse manager, Sam Gress, about his coworker's comment, but Gress did not meet with Plaintiff or return any more telephone calls from Plaintiff.
(5) On October 11, 2015, when Plaintiff arrived at work, three coworkers met him in the parking lot and told him: “I told you not to show up, ” “What's it take[, ] a bad accident . . . or something before you realize no one wants you here, ” and “Don't come back.”
(6) On October 23, 2015, Plaintiff received a letter from Defendant stating Plaintiff was “a voluntary quit” because he had missed three or more unreported days of work.

         On July 18, 2016, Plaintiff filed a complaint with the Oregon Bureau of Labor and Industries (BOLI) alleging he was terminated for whistleblowing activities in violation of Oregon Revised Statutes § 659A.199 and that he was also subjected to a hostile work environment. Specifically, Plaintiff alleged he reported to his manager and a lift driver in July 2015 that (1) the batteries on “the sweeper” were in dangerous condition and could explode at any time; (2) the maintenance log falsely reflected the batteries for the sweeper had been replaced on July 18, 2015; and (3) “the green card sheet” falsely reflected maintenance had replaced “the blower motor.” Plaintiff also alleged he was told by his work partner on October 10, 2015, that Defendant would not need Plaintiff to report to work the following day. When Plaintiff stated he was going to come to work anyway, his work partner allegedly responded: “Man! You must want to get hurt.” Plaintiff arrived for his shift on October 11, 2015, and was threatened by three of Defendant's employees “in retaliation for [his] earlier reports.” Defendant, however, alleges Plaintiff was sent home because he was not scheduled to work. On October 23, 2015, Plaintiff received a letter from Defendant in which Defendant stated Plaintiff had voluntarily resigned because he had not been to work since October 11, 2015. Plaintiff did not file a complaint with the Equal Employment Opportunity Commission (EEOC) nor did BOLI cross-file Plaintiff's complaint with the EEOC.

         On November 2, 2016, BOLI issued to Plaintiff a right-to-sue letter in which it advised Plaintiff that he had “the right to file a suit in state circuit court . . . within 90 days from the date of this letter. After 90 days, this right will be lost.” Def.'s Mot. to Dismiss, Ex. B at 1.

         On January 27, 2017, Plaintiff filed a pro se complaint against Defendant in Multnomah County Circuit Court alleging claims for employment discrimination in violation of Title VII, 42 U.S.C. § 2000e-3(a); the National Labor Relations Action (NLRA), 29 U.S.C. § 157; Oregon Revised Statutes §§ 243.672(1), 659A.030(1)(f), 659A.199, and 659A.200-659A.236; and the Revised Code of Washington (RCW) §§ 49.60.210 and 41.56.140. Plaintiff served Defendant with the complaint on January 30, 2017.[1]

         On February 3, 2017, Plaintiff filed an amended complaint in state court against Defendant to add facts to support his claims. Plaintiff served his amended complaint on Defendants on February 6, 2017.

         On February 28, 2017, Defendant removed the matter to this Court on the grounds of both federal-question and diversity jurisdiction. Defendant served Plaintiff with its Notice of Removal on February 28, 2017.

         On March 3, 2017, Plaintiff filed a third amended complaint in state court. Plaintiff did not serve the third amended complaint on Defendant. Nevertheless, Defendant attached the third amended complaint to its Notice of Removal and relied on the third amended ...


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