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Higuera v. City of Portland

United States District Court, D. Oregon

August 2, 2018


          Judy Snyder, Law Offices of Judy Snyder Of Attorneys for Plaintiff.

          Anne Milligan, Deputy City Attorney, Portland City Attorney's Office, Of Attorneys for Defendants.



         Plaintiff 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. § 1981.


         A 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).

         A 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 (2007)).


         Plaintiff 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.

         In 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 hired.

         In 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.

         In the 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.

         In 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.

         On or 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 ...

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