United States District Court, D. Oregon
Michael H. Simon, United States District Judge.
States Magistrate Judge Stacie F. Beckerman issued Findings
and Recommendations on this case in July. ECF 37. Magistrate
Judge Beckerman recommended that defendant Costco Wholesale
Corporation's motion to dismiss Mr. Simons' federal
and state law discrimination claims be
DENIED. The Court ADOPTS
the Findings and Recommendations for the following reasons.
the Federal Magistrates Act (“Act”), the Court
may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). If a party
files objections to a magistrate judge's findings and
recommendations, “the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” Id.; Fed.R.Civ.P. 72(b)(3).
those portions of a magistrate judge's findings and
recommendations to which neither party has objected, the Act
does not prescribe any standard of review. See Thomas v.
Arn, 474 U.S. 140, 152 (1985) (“There is no
indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate's report
to which no objections are filed.”); United States.
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (holding that the court must review de novo
magistrate judge's findings and recommendations if
objection is made, “but not otherwise”). Although
in the absence of objections no review is required, the Act
“does not preclude further review by the district
judge sua sponte . . . under a de novo or
any other standard.” Thomas, 474 U.S. at 154.
Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b)
recommend that “[w]hen no timely objection is filed,
” the Court review the magistrate judge's
recommendations for “clear error on the face of the
timely filed objections, arguing that the Court should grant
the motion to dismiss because the Second Amended Complaint
(“SAC”) does not pass muster under Rule 12(b)(6).
ECF 41 at 6. Costco spends five pages recapping the factual
background, procedural history, and legal standard relevant
to the case. ECF 41 at 1-5. Costco then lodges two specific
objections: (1) Magistrate Judge Beckerman erred in finding
that Mr. Simons adequately pleaded the similarity of his
situation to that of two Caucasian employees who Costco
treated differently and (2) Magistrate Judge Beckerman erred
in finding that Mr. Simons adequately pleaded that Costco
treated him differently because of his race. ECF 41 at 6. Mr.
Simons briefly responded to Costco's objections, but
filed no objections of his own. ECF 42.
objections are meritless. “To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007)). The Court
assumes that the “well-pleaded” facts in Mr.
Simons' complaint are true in assessing Costco's
motion to dismiss. See Daniels-Hall v. Nat'l Educ.
Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
states the law incorrectly in its first objection. Title VII
does not require plaintiffs to plead that they were treated
differently from other employees who were similarly situated
in “all material respects.” ECF 41 at 6-7.
Magistrate Judge Beckerman states the law correctly. Title
VII requires plaintiffs only to plead “sufficient facts
to plausibly infer that [they were] treated
differently” from similarly situated employees.
Barrett v. Kaiser Found. Health Plan of the Nw.,
2015 WL 4603436, at *4 (D. Or. July 30, 2015) (citing
Johnson v. Riverside Healthcare Sys., L.P., 534 F.3d
1116, 1122 (9th Cir. 2008)). Mr. Simons pleads such facts:
his Caucasian colleagues violated the same Costco policies,
worked in the same city or warehouse as Mr. Simons, and had
the same supervisor as Mr. Simons. SAC ¶¶ 8-13.
Costco demoted and transferred Mr. Simons. His Caucasian
colleagues suffered no such consequences. Id. From
these facts, the Court can plausibly infer that Mr. Simons
was similarly situated to the two Caucasian workers yet
Costco treated him differently.
whether a complaint states a plausible claim for relief . . .
requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, U.S. 556
at 679. Mr. Simons' manager barely knew him but still
demoted and fired him for the alleged violations. The manager
also told Costco management that Mr. Simons-the only Black
manager or supervisor in the warehouse- “looked too
gangster.” SAC ¶ 14. Costco argues that this
comment is “not inherently tied to race” and thus
that Mr. Simons does not plead that he was treated
differently because of his race. Their objection runs counter
to both common sense and the Court's own judicial
experience. Title VII protects against
“dog-whistle” racism, defined as “the use
of code words and themes which activate conscious or
subconscious racist concepts and frames.” Lloyd v.
Holder, 2013 WL 6667531, at *9 (S.D.N.Y. Dec. 17, 2013);
see, e.g., Lisa Foderaro, He's a Rhodes
Scholar. The G.O.P. Keeps Calling Him a ‘Big-City
Rapper,' N.Y. Times, Oct. 1, 2018,
(discussing advertisements referring to a Black congressional
candidate running in a predominantly Caucasian district as a
“big-city rapper”). Costco blows the dog-whistle
and expects the Court to plug its ears. I will not.
those portions of Magistrate Judge Beckerman's Findings
and Recommendations to which neither party has objected, this
Court follows the recommendation of the Advisory Committee
and reviews those matters for clear error on the face of the
record. No such error is apparent.
Court ADOPTS Magistrate Judge
Beckerman's Findings and Recommendations. ECF 37.
Costco's Motion to Dismiss the SAC (ECF 29) is
IS SO ORDERED.
 Furthermore, “whether two
employees are similarly situated is ordinarily a question of
fact, ” and should be resolved on summary judgment at
the earliest. Hawn v. Exec. Jet Mgmt., ...