Opinion
3:21-cv-00475-JR
05-25-2021
ASHLEY COHEN, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge.
Defendant the United States of America moves to dismiss plaintiff Ashley Cohen's complaint pursuant to Fed.R.Civ.P. 12(b)(1). For the reasons set forth below, defendant's motion should be granted in part and denied in part.
BACKGROUND
In January 2018, plaintiff was hired by The Right Solution, Inc. (“TRS”), a private corporation that contracts with the United States Forest Service (“USFS”) to provide substance abuse counselors to youth participants at Timber Lake Jobs Corps. Compl. ¶¶ 2, 10-11 (doc. 11). At hire, plaintiff was informed that the minimum qualification for the substance abuse counselor position was a “CADC I” certification. Id. at ¶ 12.
On November 6, 2018, Kolleen Simons, TRS's Owner and President, instructed plaintiff that she would need a more advanced certification - “CADC II” - to continue working as a substance abuse counselor. Id. at ¶¶ 3, 13. Plaintiff stated she would work towards obtaining that certification by June 2019. Id. at ¶ 13. Simons responded that Timber Lake Job Corps would be informed of plaintiff's timeline. Id.
On November 20, 2018, plaintiff expressed concern that Teri Tuthill, the Health and Wellness Director of Timber Lake Job Corps, “was violating the law by sharing the results of participants' urine analysis tests with staff members.” Id. at ¶¶ 6, 14. Tuthill allegedly “responded aggressively and dismissively.” Id. at ¶ 14.
On January 29, 2019, plaintiff reported to Kurt Davis, the Director of Timber Lake Job Corps, “that two students were alleging that an adult staff member had had sex with other minor students in the program.” Id. at ¶¶ 5, 15. The staff member in question was married to Tuthill's cousin. Id. at ¶ 15. Davis purportedly pressured plaintiff “to tell him the names of the students who had informed her of the allegations, threatening her job if she refused.” Id.
On February 4, 2019, plaintiff reported the alleged sexual abuse to the Oregon Department of Human Services (“DHS”). Id. at ¶ 16. Thereafter, Davis and Tuthill began questioning plaintiff about her DHS report and job performance/credentials “in a manner which [she] perceived as threatening her job.” Id. at ¶¶ 17-18.
On February 15, 2019, plaintiff contacted Harris Maceo, USFS's Acting Director of Job Corps, to express her concerns about retaliatory behavior by Tuthill and Davis. Id. at ¶ 19. She then sent follow-up emails to Maceo and Ira Young, USFS's Assistant Director. Id.
On March 25, 2019, Tuthill asked plaintiff “to document meetings with participants in a way that Plaintiff believed would violate her legal obligations to keep her clients' confidentiality.” Id. at ¶ 20. In response to plaintiff's concerns, Tuthill “mention[ed] Plaintiff's credential ‘waiver' and stat[ed] she wanted Plaintiff's contract to be terminated.” Id.
On April 8, 2019, plaintiff was interviewed by Theodore Shaw and David Kesner, USFS Personnel Misconduct Investigators, and filed a harassment report against Tuthill. Id. at ¶ 21.
On May 1, 2019, Jennifer Rockman, a USFS Contracting Officer, told Simons that plaintiff was no longer eligible for the substance abuse counseling position because she did not have a “CADC II” certification and her waiver had expired, at which point plaintiff's employment was terminated by Simons. Id. at ¶¶ 4, 22-23.
On October 30, 2019, plaintiff filed a civil rights complaint with the Oregon Bureau of Labor and Industries (“BOLI”) alleging TRS, Tuthill, Davis, Simons, and Rockman violated Chapter 659A of the Oregon Revised Statutes. Id. at ¶ 8. On October 30, 2020, BOLI issued a right to sue letter. Id. at ¶ 9.
On January 26, 2021, plaintiff initiated this action in Clackamas County Circuit Court alleging: (1) whistleblower retaliation under Or. Rev. Stat. § 659A.199 against TRS; (2) discrimination for opposing an unlawful employment practice under Or. Rev. Stat. § 659A.030(1)(f) against TRS; (3) aiding and abetting an unlawful employment practice under Or. Rev. Stat. § 659A.030(1)(g) against TRS, Tuthill, Davis, Simons, and Rockman; (4) wrongful discharge against TRS; and (5) intentional infliction of emotional distress (“IIED”) against TRS, Tuthill, Davis, Simons, and Rockman. See generally id.
Pursuant to 28 U.S.C. § 2679(d), defendant certified that Rockman, Davis, and Tuthill were acting within the scope of their employment at all relevant times and removed plaintiff's case to this Court. Defendant was subsequently substituted in place of those individuals under the Federal Tort Claims Act (“FTCA”), and plaintiff voluntarily dismissed her remaining claims against Simons and TRS.
On April 2, 2021, defendant filed the present motion to dismiss. Briefing in regard to that motion was completed on April 30, 2021.
STANDARD OF REVIEW
Where the court lacks subject matter jurisdiction, the action must be dismissed. Fed.R.Civ.P. 12(b)(1). The party who seeks to invoke the subject matter jurisdiction of the court bears the burden of establishing that such jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The court may hear evidence regarding subject matter jurisdiction and resolve factual disputes where necessary. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008).
DISCUSSION
Defendant asserts prejudicial dismissal is appropriate in regard to plaintiff's sole remaining claims - i.e., aiding and abetting under Or. Rev. Stat. § 659A.030(1)(g) and IIED -because they are “employment-related” and therefore “preempted by Title VII.” Def.'s Mot. Dismiss 3, 7 (doc. 8); see also Def.'s Reply to Mot. Dismiss 1 (doc. 17) (arguing that plaintiff's claims are preempted because the Complaint repeatedly uses the words “retaliation, ” “discrimination, ” and “termination”). According to defendant, plaintiff's IIED claim “is barred for the additional reason that she did not exhaust her administrative remedies under the FTCA prior to filing her lawsuit.” Def.'s Mot. Dismiss 14-15 (doc. 8).
In contrast, plaintiff contends her claims “do not fall within the purview of Title VII” because defendant “does not maintain [she] was an ‘employee' of USA” and her claims relate to discrimination and retaliation stemming from reports of “potential ‘child abuse' and ‘confidentiality violations.'” Pl.'s Resp. to Mot. Dismiss 1-2 (doc. 13). Alternatively, plaintiff maintains “she substantially complied with [Title VII's exhaustion] requirement or exhaustion would have been futile, ” and that she “should be granted leave to amend to plead other constitutional violations and to perfect her FTCA claims.” Id. at 2, 8. Finally, plaintiff requests “an opportunity to . . . conduct discovery regarding the scope of employment certification.” Id.
The FTCA is the exclusive remedy for torts committed by employees of the United States while acting within their scope of their employment. Wilson v. Drake, 87 F.3d 1073, 1076 (9th Cir. 1996). It provides for a limited waiver of sovereign immunity by granting federal district courts jurisdiction over “civil actions on claims against the United States . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, ” provided the plaintiff first exhausts his or her administrative remedies. 28 U.S.C. §§ 1346(b)(1), 2675(a), 2680.
Title VII is the “exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination . . . based on race, color, religion, sex, or national origin.” Brown v. Gen. Servs. Admin., 425 U.S. 820, 825-30 (1976); see also 42 U.S.C. §§ 2000e-2(a), 2000e-16 (it is unlawful under Title VII for a private or public employer to discriminate “based on race, color, religion, sex, or national origin”). By extension, claims alleging retaliation or a hostile work environment premised on race, color, religion, sex, or national origin also fall under Title VII. See, e.g., Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 871 (9th Cir. 2001); White v. Gen. Servs. Admin., 652 F.2d 913, 917 (9th Cir. 1981). Like the FTCA, “[i]n order to bring a Title VII claim in district court, a plaintiff must first exhaust her administrative remedies.” Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001).
Given that the FTCA governs claims against federal employees and Title VII applies to both public and private employers, the Court does not find the issue of whether plaintiff is properly categorized as an employee of a government contractor or the government itself determinative. This is especially true considering that: (1) neither of the cases plaintiff relies on in support of the proposition that “contract workers are not [government] employees” involved Title VII; and (2) plaintiff's employment status has not been sufficiently alleged in the dispositive pleading or otherwise factually developed. Pl.'s Resp. to Mot. Dismiss 4 n.2 (doc. 13); see also Compl. ¶¶ 10-11 (doc. 1-1) (alleging only that plaintiff was employed as a substance abuse counselor by TRS, who “contracted with [USFS to staff] Timber Lake Jobs Corps”).
In advocating for dismissal, defendant relies exclusively on precedent pertaining to allegations of workplace discrimination based on one or more of Title VII's specifically articulated protected characteristics. See Def.'s Mot. Dismiss 10-11 (doc. 8) (citing Navarro v. Immigration & Customs Enf't, 2019 WL 2090008, *2 (S.D. Cal. May 13, 2019) (“[defendants discriminated against [the plaintiff] because of her Mexican national origin and female sex”); and McCowen v. Dep't of Veterans Affairs, 2021 WL 764137, *1 (S.D. Cal. Feb. 26, 2021) (“[p]laintiff alleges he was subjected to a hostile work environment based on race, age and physical disability”)); see also 29 C.F.R. § 1614.105(a) (prescribing Title VII exhaustion for “persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information”).
Yet courts have concluded that “Title VII does not preempt state law discrimination claims which do not directly conflict with Title VII . . . [otherwise] any state employment discrimination claim . . . would be removable to federal court.” Bellido-Sullivan v. Am. Int'l Grp., Inc., 123 F.Supp.2d 161, 166 (S.D. N.Y. 2000); see also Shaw v. Delta Air Line, Inc., 463 U.S. 85, 103 (1983) (“Title VII does not itself prevent States from extending their nondiscrimination laws to areas not covered by Title VII . . . Title VII is neutral on the subject of all employment practices it does not prohibit”); 42 U.S.C. § 2000e-7 (“[n]othing in [Title VII] shall be deemed to exempt or relieve any person from any liability . . . provided by any present or future law of any State”).
As such, the proper inquiry concerns whether Title VII provides a remedy for the facts underlying plaintiff's claims, such that they could have been brought pursuant thereto. See Brunetti v. Rubin, 999 F.Supp. 1408, 1412 (D. Colo. 1998) (Brown “focused on whether federal employees should be able to bring parallel actions under both Title VII and other provisions of federal law to redress the same basic injury . . . [nothing] suggests that Congress intended to prevent federal employees from suing their employers or supervisors for constitutional, statutory, or common law violations against which Title VII provides no protection at all”); Wallace v. Henderson, 138 F.Supp.2d 980, 986 (S.D. Ohio 2000) (“[t]o hold that [all workplace] claims are precluded by Title VII would deprive plaintiffs of a remedy for injuries which are not addressed by that statute”); Tocci v. Napolitano, 791 F.Supp.2d 994, 998 (D. Or. 2011) (“analogous state law claim under O.R.S. 659A.030 could not be pursued” if Title VII or the Age Discrimination in Employment Act apply); see also White, 652 F.2d at 917 (“Title VII does not preclude separate remedies for unconstitutional action other than discrimination based on race, sex, religion or national origin”); Monfore v. United States, 1995 WL 66786, *3 (9th Cir. Feb. 16, 1995) (Title VII did not provide the exclusive remedy in regard to a federal employment defamation claim that was based upon a separate factual predicate than the plaintiff's allegations of sexual harassment).
Here, plaintiff alleges that TRS violated Or. Rev. Stat. § 659A.199 by retaliating against her for reporting breaches of client confidentiality and student sexual abuse, and that defendant (through Rockman, Davis, and Tuthill) aided or abetted in this retaliation in contravention of Or. Rev. Stat. § 659A.030(1)(g) (and, by extension, Oregon common law). Compl. ¶¶ 14-21, 24-32, 42-47, 55-61 (doc. 1-1). These statutes, in turn, make it unlawful for “any person, whether an employer or an employee, [to aid or abet in] the doing of any of the acts forbidden under this chapter, ” including retaliating against good faith reports related to “a violation of a state or federal law, rule or regulation.” Or. Rev. Stat. §§ 659A.030(1)(g), 659A.199. Thus, unlike Title VII, Or. Rev. Stat. § 659A.030(1)(g) is not limited to discrimination or retaliation premised on a protected status but rather more broadly applies to whistleblower retaliation associated with reporting other types of legal violations. See Dinicola v. Serv. Emp. Int'l Union, 2011 WL 3477074, *7 (D. Or. Aug. 5, 2011) (the plaintiff must establish a “a violation of Chapter 659A Whistleblower laws” as a prerequisite to an aiding and abetting claim).
Plaintiff also cites to Or. Rev. Stat. § 659A.030(1)(f) in arguing that she “did not allege any claims against USA arising out of discrimination ‘based on race, color, religion, sex, or national origin' or retaliation arising out of opposition to such discrimination.” Pl.'s Resp. to Mot. Dismiss 5-6 (doc. 13). This District, however, has consistently interpreted Or. Rev. Stat. § 659A.030(1)(f) to protect solely against discrimination or retaliation based on “a protected status, such as race, color, religion, sex, sexual orientation, marital status, age, or disability.” Bauer v. Old Dominion Freight Line, Inc., 2019 WL 339404, *4 (D. Or. Jan. 28, 2019); see also Linggi v. TE Connectivity Co., 2019 WL 2870825, *15 (D. Or. July 3, 2019) (“if 659A.030(1)(f) provided a cause of action for violations of Section 659A.199, it would be redundant and unnecessary”) (citation and internal quotations omitted).
Plaintiff's allegations plainly do not concern race, color, religion, sex, national origin, or any other personal characteristic, and instead are grounded in opposing unlawful practices surrounding student/client rights. Stated differently, plaintiff could not have brought her claims under Title VII and there is no conflict. Indeed, several courts have held that retaliation for reporting child abuse or the violation of other non-employee rights (such as those of students) are not covered by Title VII. See Eugenio v. Walder, 2009 WL 1904526, *12-13 (S.D. N.Y. July 2, 2009) (reports of racial discrimination against students do not fall within the ambit of Title VII); Davis v. Hartford, 2010 WL 11561320, *18, 20-21 (D. Conn. Apr. 6, 2010) (reports of student abuse cannot form the basis of a Title VII claim); Washington v. Oakland Unified Sch. Dist., 1996 WL 241791, *3 (N.D. Cal. May 3, 1996) (reports of child abuse and licensing violations are not protected by Title VII); Rains v. Criterion Sys., Inc., 80 F.3d 339, 345 (9th Cir. 1996) (“Title VII does not preempt the state law claim for wrongful termination in violation of public policy”).
In sum, in the absence of any direct conflict, or on-point or analogous authority, the Court declines to read Title VII in the narrow manner advocated by defendant. Because the Court finds that plaintiff's third and fifth claims are not preempted by Title VII, it need not address the parties' related/alternate arguments.
Regarding FTCA exhaustion, plaintiff implicitly concedes she failed to fully perfect her IIED claim prior to commencing this lawsuit. See Casey Decl. ¶¶ 3-5 (doc. 10); Schweiner Decl. ¶¶ 3, 5 (doc. 11); Masih Decl. ¶¶ 4-5 (doc. 14) (both parties acknowledging that plaintiff filed the requisite FTCA notice on March 16, 2021 - i.e., approximately two months after this action was commenced). Accordingly, this Court lacks subject matter jurisdiction over plaintiff's IIED claim. See Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992) (“[a] tort claimant may not commence proceedings in court against the United States without first filing her claim with an appropriate federal agency and either receiving a conclusive denial of the claim from the agency or waiting for six months to elapse without a final disposition of the claim being made”); see also Mendenhall v. United States, 2021 WL 1032276, *5 (D. Alaska Mar. 17, 2021) (dismissing the plaintiff's assault and battery claims under the FTCA for lack of subject matter jurisdiction where he “submitted an SF-95 administrative claim form in March 2020, ” one month after filing suit).
Finally, for the first time in its reply brief, defendant argues that plaintiff's claims are barred by the Whistleblower Protection Act and/or Civil Service Reform Act. Compare Def.'s Mot. Dismiss 7-17 (doc. 8), with Def.'s Reply to Mot. Dismiss 2, 8 (doc. 17). However, issues raised for the first time in the reply brief are typically deemed waived. Bazuaye v. Immigration & Naturalization Serv., 79 F.3d 118, 120 (9th Cir. 1996); see also In re Intuit Privacy Litig., 138 F.Supp.2d 1272, 1275 n.3 (C.D. Cal. 2001) (refusing to consider arguments first raised in a reply brief “as to do so would unfairly deny the non-moving party an opportunity to respond”). Moreover, it does not appear as though the Whistleblower Protection and Civil Service Reform Acts were explored during the conferral process. See, e.g., Schweiner Decl. ¶¶ 2-4 (doc. 11); Masih Decl. ¶ 4 (doc. 14); see also LR 7-1(a) (court “may deny any motion that fails to meet [the] certification requirement”).
As a result, the Court limits its analysis to the Title VII and FTCA issues expressly raised in defendant's motion as it is unclear, given the inadequate briefing, whether plaintiff's allegations fall within the confines of the belatedly invoked acts. Similarly, to the extent plaintiff seeks leave to amend and conduct discovery via her response brief, her requests are procedurally improper. See LR 7-1(b) (“[m]otions may not be combined with any response, reply, or other pleading”). Regardless, nothing prevents either party from raising these arguments in subsequent proceedings.
RECOMMENDATION
For the reasons stated herein, defendant's Motion to Dismiss (doc. 8) should be granted as to plaintiff's IIED claim and denied in all other respects. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.