United States District Court, D. Oregon
Michael O. Stevens, Stevens & Legal, LLC, 3699 NE John
Olsen Avenue, Hillsboro, Oregon 97124. Of Attorneys for
A. Crabtree and Anthony P. Copple, Jackson Lewis P.C., 200 SW
Market Street, Portland, Oregon 97201. Of Attorneys for
OPINION AND ORDER
MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE.
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.
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
(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).
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.
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.
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
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.
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