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Blanks v. University of Oregon

United States District Court, D. Oregon, Eugene Division

October 10, 2018

DYLAN BLANKS, Plaintiff,
v.
UNIVERSITY OF OREGON, LORETTA CANTWELL[1] and LEANN GUTIERREZ, in their individual capacities and their official capacities, Defendant.

          OPINION AND ORDER

          Ann Aiken United States District Judge.

         In this Motion to Dismiss (doc. 14), defendants University of Oregon ("UO"), Lorretta Cantwell ("Cantwell"), and LeAnn Gutierrez ("Gutierrez") seek to dismiss some of plaintiff Dylan Blanks' ("Blanks") claims under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted respectively. For the reasons set forth below, defendant's motion is granted in part and denied in part.

         BACKGROUND

         Plaintiff began working as a registered nurse for UO, starting in April 2007. Defendant Cantwell has served as the Director of Nursing for UO's Health Center ("UHC") since September 2015. Defendant Gutierrez has served as the Director of the UHC since 2016.

         The UHC's mission is to "provide exceptional culturally competent health services and public health leadership that enhances the personal success and optimizes health and wellness for a diverse campus community." Compl. ¶ 7. UHC is required to comply with all state and federal laws governing the health care industry.

         Part of plaintiff s responsibilities as a registered nurse required her to monitor the Digital Data Loggers ("DDL") for the vaccine refrigerators to ensure compliance with Center for Disease Control ("CDC") and Vaccine for Children ("VFC"). In October 2016, the temperature range for the stored flu vaccinations went out of compliance during an off-site clinic. Plaintiff brought this to CantwelPs attention. This issue happened again later that same month for a separate clinic. Plaintiff reported this issue to the clinic's Medical Director, Dr. Brunander, and alleges that Cantwell falsified a report related to this incident. Plaintiff filed a complaint against Cantwell to the Oregon Board of Nursing in January 2017 with respect to the falsifying of that report.

         Plaintiff also alleges that Cantwell engaged in conduct creating a hostile work environment for plaintiff after she filed the complaint with the Board. Cantwell's alleged conduct included: micromanagement; monitoring phone calls; addressing plaintiff in a rude manner; responding to plaintiff in a "cold, accusatory, and suspicious manner;" gradually taking away plaintiffs responsibilities and decision-making authority; transferring her duties to subordinate nurses; putting added expectations on her; questioning all of plaintiffs decisions; trying to find fault in plaintiffs performance; subjecting plaintiff to heightened expectations; and "disparately disciplining her[.]" Id. at ¶ 41.

         Plaintiff also alleges that she was subjected to a racially hostile environment caused by Cantwell. This alleged hostile behavior included: having scheduled meetings every day to show that none of the refrigerators were out of compliance, which were held in an "exaggerated and demeaning way," Id. at ¶ 19; being rude and dismissive whenever plaintiff asked a question; and failing to directly address plaintiff when she attempted to confront Cantwell about these issues.

         In the fall of 2016, plaintiff filed a complaint with the UO's Affirmative Action and Equal Opportunity ("AAEO") Office, alleging that Cantwell subjected her to disparate treatment and a hostile work environment based on race. In June 2017, after conducting an investigation, the AAEO found that Cantwell had treated plaintiff "differently than others in a number of ways, and that race was more likely than not at least a factor" and that the conduct had "created an intimidating and hostile working environmentf.]" Id. at 49.

         Following the investigation, plaintiff alleges the hostility and harassment increased. Cantwell now provided plaintiff with a document of "expectations" that included a threat of termination if the expectations were not met. Id. at ¶ 35. Plaintiff later complained to Gutierrez about Cantwell's behavior. Plaintiff was put on administrative leave while an investigation was initiated with respect to these accusations. Cantwell allegedly told plaintiffs coworkers that she was put on administrative leave because she "played the race card[.]" Id. at ¶ 40. On October 5, 2017, plaintiff filed the present complaint before this Court, where she alleges claims involving protected speech, race discrimination, retaliation for engaging in speech related to the handling of vaccines, and retaliation for reporting Cantwell's alleged discriminatory conduct, Defendants now move to dismiss some of plaintiffs claims pursuant Fed. R Civ. 12(b)(1) and 12(b)(6). Specifically, defendants move to dismiss plaintiffs' claims for protected speech retaliation, race discrimination pursuant to 42 U.S.C. §§ 1983, 1981, and Or. Rev. Stat. § 695A.030, retaliation pursuant to Or. Rev. Stat. § 659A.030(f), and whistleblowing retaliation pursuant to Or. Rev. Stat. § 659A.203 against defendants Cantwell and Guitierrez. Defendant's also seek to dismiss plaintiffs claims for race discrimination pursuant to 42 U.S.C. § 2000e-2 and whistleblowing retaliation pursuant to Or. Rev. Stat. § 659A.199 against defendants Cantwell, Guiterriez, and University of Oregon.

         STANDARDS

         A motion to dismiss under Fed.R.Civ.P. 12(b)(1) challenges the court's subject matter jurisdiction. Federal courts have limited jurisdiction and are presumed to lack subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). The burden is on the plaintiff to prove that the court has subject matter jurisdiction. Id. A challenge to the subject matter jurisdiction of a court may either be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).

         A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the sufficiency of a complaint and allows dismissal to the extent the pleading fails to state a claim upon which relief can be granted. Under Rule 12(b)(6), a complaint must contain sufficient factual allegations, which, if assumed to be true, "state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face if the factual allegations in the complaint allow a court to reasonably infer the defendant's liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff." Din v. Kerry, 718 F.3d 856, 859 (9th Cir, 2013). The factual allegations in the complaint must present more than "the mere possibility of misconduct," id. at 679, and more than a "formulaic recitation of the elements of a cause of action[.]" Twombfy, 550 U.S. at 555.

         DISCUSSION

         I. Tit ...


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