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Cilione v. Techfive, LLC

United States District Court, D. Oregon

March 18, 2019

TECHFIVE, LLC, Defendant.

          Michael O. Stevens, Stevens & Legal, LLC, 3699 NE John Olsen Avenue, Hillsboro, Oregon 97124. Of Attorneys for Plaintiff.

          Mark A. Crabtree and Anthony P. Copple, Jackson Lewis P.C., 200 SW Market Street, Portland, Oregon 97201. Of Attorneys for Defendant.



         Plaintiff Jessica Cilione brings four claims against her former employer, Defendant TechFive, LLC, alleging that she was discriminated against on the basis of gender in violation of Or. Rev. Stat. § 659A.030, retaliated against for using protected medical leave in violation of Or. Rev. Stat. § 659A.183, retaliated against for whistleblowing in violation of Or. Rev. Stat. § 659A.199, and wrongfully discharged under Oregon common law. Defendant moves to dismiss Plaintiff's discrimination and whistleblowing claims as untimely and moves for the dismissal of Plaintiff's common law wrongful discharge claim because it is precluded by statute. For the reasons that follow, Defendant's motion is granted in part and denied in part.


         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)). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).


         Plaintiff began working for National Electronic Warranty in 2007. When Defendant purchased National Electronic Warranty in 2016, Plaintiff became one of Defendant's employees, and she remained an employee of Defendant until 2018. Defendant operates a call center that provides customer support to owners of electronic equipment and sells property protection for a variety of electronic equipment.

         On January 12, 2017, Plaintiff discovered that some customer-care agents were improperly adding property protection plans for electronics without customers' knowledge or consent. She immediately reported this to her supervisors. Plaintiff's immediate supervisor at the time was John Sergi, and Sergi's supervisor was Lawrence Jones. Brandon Keffer was another of Plaintiff's supervisors. Plaintiff reports that her supervisors told her to ignore her co-workers' improper actions. Also in January of 2017, Plaintiff was passed over for a promotion, and a male colleague with less experience than Plaintiff was selected for the position. On January 24, 2017, Plaintiff was passed over for a position on the Customer Solution Team (“CST”). In February of 2017, a male colleague with less experience was selected for the CST position instead of Plaintiff.

         In July 2017, Plaintiff experienced a serious health condition as a result of the stress she experienced in the workplace. She requested leave under the Oregon Family Leave Act (“OFLA”). On July 21, 2017, Defendant granted Plaintiff's OFLA leave request, although Marilyn Gueltzow, the human resources representative in Defendant's call center, told Plaintiff she should “quit her job.” On July 26, 2017, Ms. Gueltzow shared the details of Plaintiff's OFLA leave with other employees by email. On July 31, 2017, Mr. Jones denied Plaintiff's request for a more flexible work schedule, although he granted other coworkers' requests for a flexible schedule.

         In August of 2017, Plaintiff reported to Ms. Gueltzow that two of her supervisors, Mr. Keffer and Mr. Sergi yelled at and humiliated female co-workers. She also reported that one of her male co-workers, Rexford Copsy, frequently followed her around the workplace and into the bathroom. Defendant did not investigate Plaintiff's complaints.

         On September 21, 2017, Plaintiff took continuous OFLA leave due to the effects on her health of the allegedly hostile workplace. Plaintiff has not worked for Defendant since approximately January 2018. On March 26, 2018, Plaintiff filed a complaint with the Bureau of Oregon Labor and Industries (“BOLI”), alleging that Defendant subjected her to a hostile work environment and retaliated ...

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