United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Aiken United States District Judge.
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.
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.
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.
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.
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.
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
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.
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.
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).
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.