United States District Court, D. Oregon
Snyder, Law Offices of Judy Snyder Of Attorneys for
Milligan, Deputy City Attorney, Portland City Attorney's
Office, Of Attorneys for Defendants.
OPINION AND ORDER
MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE
Frank Higuera filed a lawsuit in state court against
Defendants City of Portland (“City”) and Eileen
Argentina (collectively, “Defendants”). Plaintiff
asserts claims alleging that Defendants refused to hire
Plaintiff because of his color; specifically, that he is too
pale. Defendants timely removed this case to federal court.
Defendants now move to dismiss Plaintiff's Second Claim
for Relief, which alleges violations of 42 U.S.C. §
motion to dismiss for failure to state a claim may be granted
only when there is no cognizable legal theory to support the
claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief.
Shroyer v. New Cingular Wireless Servs., Inc., 622
F.3d 1035, 1041 (9th Cir. 2010). In evaluating the
sufficiency of a complaint's factual allegations, the
court must accept as true all well-pleaded material facts
alleged in the complaint and construe them in the light most
favorable to the non-moving party. Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012); Daniels-Hall v. Nat'l Educ. Ass'n,
629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a
presumption of truth, allegations in a complaint “may
not simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give
fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). All reasonable inferences from the
factual allegations must be drawn in favor of the plaintiff.
Newcal Indus. v. Ikon Office Solution, 513 F.3d
1038, 1043 n.2 (9th Cir. 2008). The court need not, however,
credit the plaintiff's legal conclusions that are couched
as factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009).
complaint must contain sufficient factual allegations to
“plausibly suggest an entitlement to relief, such that
it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
litigation.” Starr, 652 F.3d at 1216. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
is a resident of Oregon. He identifies as an Hispanic male.
Beginning in 2011, he was employed as a seasonal maintenance
worker with the City's Parks and Recreation Department,
working from March through October of each year. On February
12, 2018, he began working full time for the City in a
Utility I position. He was hired for that position in January
2018. Plaintiff's allegations involve his difficulty
getting hired in other positions, particularly positions
involving working with at risk youth.
2011, Plaintiff was hired as a seasonal park ranger, but the
position was later cut due to budget cuts. Plaintiff was
never re-hired for a park ranger position. Since 2014,
Plaintiff has applied for several positions in the Recreation
Department, including Recreation Coordinator I, Recreation
Coordinator I-At Risk Youth/Teen Outreach Specialty, and
Recreation Coordinator II-At Risk Youth Outreach Specialty.
On February 1, 2016, Plaintiff was interviewed for a
Recreation Coordinator I-At Risk Youth position, but did not
receive a second interview and was not hired. Instead an
African American male who was younger than Plaintiff was
2016, a temporary Recreation Coordinator I position became
available. Only people who had made the list of potential
applicants for the permanent Recreation Coordinator I-At Risk
Youth position were considered for the temporary position.
Jeff Milkes, the manager for the position, believed that
Plaintiff would be a good fit. He and Craig Vanderbout, the
local supervisor, interviewed Plaintiff for the position. Mr.
Milkes wanted to hire Plaintiff for the position, and
Plaintiff believed he would be hired. He did not hear
anything further about the position for several months.
summer of 2016, Plaintiff spoke to Betsy Refern, a supervisor
with the City, about his difficulty obtaining a position with
the City on a full time basis. Ms. Refern told Plaintiff that
he “needed to get a tan.” Later, in September
2016 at a city-wide picnic, Mr. Milkes told Plaintiff that
Mr. Milkes “could not” hire Plaintiff.
March 2017, Plaintiff filed a discrimination complaint with
the City's Human Resources Department. Plaintiff
expressed concern that he was not being hired despite being
qualified and having City managers who wanted to hire him.
Plaintiff mentioned that his age may be a factor in his
difficulty obtaining employment with the City because
everyone who had been hired was younger than him. Jeanne
Kawamoto, an employee at the Human Resources Department, told
Plaintiff that there would be an investigation. Plaintiff
never heard back from anyone in the Human Resources
Department regarding the investigation.
about March 30, 2017, Plaintiff contacted Mr. Milkes, who had
since left Portland and relocated to California. Plaintiff
told Mr. Milkes about his concerns regarding not being
selected for the temporary Recreation Coordinator I position.
Mr. Milkes stated that he wanted to hire Plaintiff for the
position but was told by the Parks and Recreation Services
Manager, Elieena Argentina, that he could not hire Plaintiff
because Plaintiff was ...