Opinion
3:20-cv-00559-AC
05-03-2021
JERRY ALEXANDER MENCHU, Plaintiff, v. MULTNOMAH COUNTY HEALTH DEPARTMENT, Defendant.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE
Plaintiff Jerry Alexander Menchu brings this claim against defendant Multnomah County Health Department for violations of state and federal law protecting against discrimination and retaliation in employment. Menchu alleges over the course of his employment, Multnomah County discriminated against him on account of his race and national origin. He also alleges that after he raised various complaints, the County retaliated against him. The Department filed a motion (“Motion”) seeking to rename the defendant, asking the court to consider materials outside the pleadings, and moving to dismiss, or in the alternative, strike, designated paragraphs from Menchu's first amended complaint (“FAC”). For the following reasons, the Motion should be granted in part and denied in part.
The Department requested oral argument. The court finds the Motion appropriate for disposition without oral argument pursuant to LR 7-1(d)(1) and denies the request.
Information in this section is derived predominantly from the FAC.
Menchu is Hispanic and has a Spanish accent. (FAC at ¶ 13, ECF No. 20.) He worked for the County as an On-Call Medical Interpreter from June 2013 to August 2015, at which point he continued working for the County as a Qualified Health Care Interpreter. (Id. at ¶ 15.) In this position, Menchu provided language interpretation services for county residents who sought services from the Department. (Id. at ¶ 16.) Menchu alleges he was, at all relevant times, fully qualified to be a Qualified Health Care Interpreter. (Id.)
Menchu alleges he was treated differently than other employees. (Id. at ¶ 18.) He was forced to perform tasks outside his job description, publicly reprimanded, and denied pay. (Id. at ¶¶ 19-21.) Menchu filed a complaint with the County's Office of Equity and Inclusion in August 2015 and reported alleged HIPAA violations to the County's HIPPA hotline in May 2016. (Id. at ¶ 22.) In March 2017, the County reduced Menchu's hours. (Id. at ¶ 23.) The County began unlawfully using uncertified interpreters, which Menchu reported to the Oregon Health Authority (“OHA”) and to the U.S. Department of Health and Human Services (“HHS”) Office of Civil Rights in April 2017 and August 2017, respectively. (Id. at ¶¶ 23-24.) Subsequently, the County increasingly assigned Menchu to work at private clinics, which Menchu believed to be unlawful. (Id. at ¶ 25.) After complaining to his supervisor, Menchu was no longer assigned to private clinics. (Id.)
In March 2018, Menchu applied for an advertised interpreter job, Health Assistant 1, for which he alleges he was well qualified. (Id. at ¶ 27.) The County instead hired an unqualified interpreter for the position in May 2018. (Id.) The County denied Menchu cost-of-living increases and additional training provided to other employees. (Id. at ¶ 28.) Menchu informed the County's Chief Human Resources officer about this discrimination in July 2018. (Id. at ¶ 29.) Menchu submitted a grievance to the County regarding his classification as an on-call employee, rather than a full-time employee, despite that he regularly worked full time. (Id. at ¶ 30.) That same month, Menchu lodged a discrimination complaint alleging he and other interpreters the County employed were classified as on-call employees rather than full-time employees because of their race and national origin. (Id. at ¶ 31.) Menchu alleges the County used this classification to deprive him of benefits and compensation afforded to full-time employees. (Id. at ¶ 33.)
Around October 2018, the County created a full-time interpreter position. (Id. at ¶ 35-36.) On October 29, 2018, Menchu learned despite the creation of the new position, he remained on-call and ineligible for benefits. (Id. at ¶ 37.) He lodged an Unfair Labor Practice Complaint with the Employee Relations Board on November 9, 2018 for violations of Oregon law. (Id. at ¶ 38.) On January 29, 2019, Menchu filed an administrative complaint with the Oregon Bureau of Labor and Industry (“BOLI”) Civil Rights Division alleging discrimination and retaliation. The complaint also was filed with the Equal Employment Opportunity Commission (“EEOC”). (Id. at ¶ 8.)
In the FAC, Menchu states he filed this complaint with BOLI on January 16, 2019. (FAC at ¶ 8.) Though the court does not believe it is necessary to consider materials outside the pleadings in ruling on the Motion, as discussed below, the court finds it helpful to include the correct date printed on the BOLI complaint for clarity. (Def.'s Mot., Ex. A, ECF No. 24.) The Department's exhibits include another BOLI complaint dated August 15, 2019, which Menchu does not reference in the Complaint. (Def.'s Mot., Ex. F.)
In April 2019, the County notified Menchu that he would be audited and required to repay payments for “extensive overtime.” (Id. at ¶ 39.) The County reduced Menchu's hours in June 2019 and again used uncertified interpreters. (Id. at ¶ 40.) Around October 2019, Menchu learned the County was having unqualified employees provide interpretation services and again complained to HHS and OHA. (Id. at ¶ 41.) These complaints, alleging violation of state and federal law, were forwarded to the County's Office of Diversity and Inclusion. (Id.)
In December 2019, the County reduced Menchu's hours again. (Id. at ¶ 42.) In March 2020, the County deprived Menchu of safety training provided to Department employees. (Id. at ¶ 43.)
In January 2020, Menchu received notice of his right to sue from both BOLI and EEOC. (Id. at ¶ 9.) He filed his initial complaint on April 6, 2020 (Compl., ECF No. 1) and filed the FAC on August 19, 2020. In the FAC, Menchu alleges the County discriminated against him on the basis of race and/or national origin in violation of 42 U.S.C. §§ 1981, 2000e-2(a), 2000d, and Or. Rev. Stat. § 659A.030(1)(b). (FAC at ¶¶ 52, 54, 77, 58.) He alleges retaliation in violation of §§ 1981, 2000e-3(a), Or. Rev. Stat. §§ 659A.030(1)(f), 659A.199, 659A.203. (Id. at ¶¶ 60, 62, 66, 70, 74.) Menchu seeks declaratory relief, injunctive relief, economic damages, and non-economic damages. (Id. at 13-14.) On September 11, 2020, the Department filed the Motion asking the court to substitute the Department for the County as the defendant, consider materials outside the pleadings in ruling on the Motion, and either strike or dismiss designated paragraphs within the FAC. (Def.'s Mot., ECF No. 24.) Menchu responded to the Motion on September 25, 2020 (Pl.'s Resp., ECF No. 26) and the Department replied on October 9, 2020 (Def.'s Rep., ECF No. 27).
Legal Standard
I. Motion to Dismiss
A party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6) (2019). A court may dismiss “‘on the lack of a cognizable legal theory or the absence of sufficient facts alleged.'” UMG Recordings, Inc. v. Shelter Cap. Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). 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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also CallerID4u, Inc. v. MCI Commc'ns Servs. Inc., 880 F.3d 1048, 1061 (9th Cir. 2018). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Teixeira v. County of Alameda, 873 F.3d 670, 678 (9th Cir. 2017). “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.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556); Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017).
The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Teixeira, 873 F.3d at 678; see also Iqbal, 556 U.S. at 679; Kwan v. SanMedica Int'l, 854 F.3d 1088, 1096 (9th Cir. 2017). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (internal quotations and citations omitted); see also Kwan, 854 F.3d at 1096. “[T]o be entitled to the 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). A claim is to be considered as a whole in determining whether it survives a Rule 12(b)(6) motion. Armer v. OpenMarket, Inc., No. C08-1731RSL, 2009 WL 2475136, at *1 (W.D. Wash. July 27, 2009) (citing Twombly, 550 U.S. at 556).
II. Motion to Strike
Federal Rule of Civil Procedure 12(f) provides a court may, on its own or on a motion, “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f) (2019). “‘Immaterial' matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded.'” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517, 534-535 (1994) (citing 5 Charles A . Wright & Arthur R. Miller, Federal Practice & Procedure § 1382, at 706-07 (1990)). “‘Impertinent' matter consists of statements that do not pertain, and are not necessary, to the issues in question.” Fantasy, 984 F.2d at 1527. The purpose of a Rule 12(f) motion is to avoid the costs that arise from litigating spurious issues by dispensing with those issues prior to trial. Courts generally view motions to strike with disfavor and grant them infrequently. See Bassiri v. Xerox Corp., 292 F.Supp.2d 1212, 1220 (C.D. Cal. 2003), rev'd on other grounds, Bassiri v. Xerox Corp., 463 F.3d 927 (9th Cir. 2006).
Courts must view the challenged pleading in the light most favorable to the pleader. Bassiri, 292 F.Supp.2d at 1220. Generally, “a motion to strike . . . should be denied unless it can be shown that no evidence in support of the allegation would be admissible, or those issues could have no possible bearing on the issues in the litigation.” Gay-Straight All. Network v. Visalia Unified Sch. Dist., 262 F.Supp.2d 1088, 1099 (E.D. Cal. 2001). “A motion to strike should not be granted unless the matter to be stricken clearly could have no possible bearing on the subject of the litigation. . . . If there is any doubt whether the portion to be stricken might bear on an issue in the litigation, the court should deny the motion.” Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F.Supp.2d 1048, 1057 (N.D. Cal. 2004) (internal citations omitted). A motion to strike, however, “may be proper if it will make the trial less complicated or if allegations being challenged are so unrelated to plaintiff's claims as to be unworthy of any consideration as a defense and that their presence in the pleading will be prejudicial to the moving party.” Thornton v. Solutionone Cleaning Concepts, Inc., No. CIV F 06-1455 AWI SMS, 2007 WL 210586, at *1 (E.D. Cal. Jan. 26, 2007).
Discussion
I. Motion to Substitute Defendant
The Department moves to have “Multnomah County Health Department” replaced with “Multnomah County” as the named defendant on the grounds that the former is an improper defendant for Menchu's claims. Menchu agrees that the County is the proper defendant but wishes to leave “Health Department” as a “further descriptive term.” (Pl.'s Resp. at 2.) The term, however, improperly describes the correct defendant.
“Under Title VII, only the plaintiff's employer is a proper party-defendant.” Rivera v. E. Bay Mun. Util. Dist., No. C 15-00380 SBA, 2015 WL 6954988, *8 n.10 (N.D. Cal. Nov. 10, 2015) rev'd on other grounds, Rivera v. E. Bay Mun. Util. Dist., 799 Fed.Appx. 481 (9th Cir. 2020). The County, not the Department, employed Menchu. (Am. Compl. at ¶ 6.) Additionally, Menchu identifies the County, rather than the Department specifically, as having received federal funding for purposes of his Title VI claim. (Id. at ¶ 76.) Menchu's Title VI claim therefore is against the County. See Johnson v. Telew, No. CIV. 06-6297-AA, 2007 WL 414346, at *3 (D. Or. Feb. 2, 2007) (explaining plaintiff cannot state a Title VI claim against an entity it did not allege received federal funding). The County is also the proper defendant for Menchu's state law claims, as state law tort claims must be brought against the public body. McVay v. Becker, No. 3:10-CV-1484-AC, 2012 WL 1890374, at *8 (D. Or. Mar. 21, 2012); Or. Rev. Stat. § 30.265.
For these reasons, the Department's motion to substitute named defendant “Multnomah County Health Department” for “Multnomah County” should be granted.
II. Consideration of Materials Outside the Pleadings
The Department asks the court to consider materials outside the pleadings in ruling on the Motion. Presumably, the Department is referring to the six exhibits attached to the Motion. These include Menchu's complaints and correspondence with BOLI and EEOC. Though somewhat unclear from the Motion, it appears the Department urges the court to employ the incorporation-by-reference doctrine. This doctrine allows the court to consider material outside the pleadings if, among other things, such material is referenced in the complaint. See Gunderson LLC v. BCG Props. Grp., Inc., No. 3:19-cv-01569-AC, 2020 WL 1529356, at *2 (D. Or. Mar. 30, 2020). The Department does not support this request with explanation or legal argument, and Menchu does not respond to the Department's apparent request.
At this stage, it is unnecessary to consider materials outside the pleadings. The Department recognizes the incorporation-by-reference doctrine is to be used “to prevent artful pleading by plaintiffs” rather than as “‘a tool for the defendants to short-circuit the resolution of a well-pleaded claim.'” (Def.'s Mot. at 13 (quoting Gunderson LLC, 2020 WL 1529356, at *2 (internal quotations and citations omitted)).) The Department has not argued that Menchu has “selectively referenc[ed] portions of documents that support [his] claims, while omitting” harmful portions. Gunderson LLC, 2020 WL 1529356, at *2. In fact, the Department has not put forth any reason whatsoever for the court to consider materials outside the pleadings.
The only purpose apparent for considering the attached exhibits would be to determine whether Menchu had, in fact, raised retaliation claims in his BOLI complaints. The Department contends, because Menchu did not raise claims under Or. Rev. Stat. § 659A.199 or § 659A.203 in his BOLI complaints, that his claims under these statutes are limited to occurrences within one year of filing his original civil complaint. (Def.'s Mot. at 25.) At this stage, the court need not determine the content of Menchu's BOLI complaints because, as explained below, even if Menchu is limited to a one-year statute of limitations, it still is improper to strike or dismiss paragraphs.
For these reasons, the Department's request to consider material outside the pleadings should be denied.
III. Motion to Dismiss or in the Alternative, to Strike
A. Motion to Dismiss
In support of the motion to dismiss, the Department asserts that “each of the designated paragraphs fail to state a claim upon which relief may be granted . . . .” (Def.'s Mot. at 8), but this contention is inconsistent with the standard for a motion to dismiss. Each paragraph of a complaint need not independently state a claim upon which relief can be granted. Armer, 2009 WL 2475136, at *1 (“No claim should be dismissed unless the complaint, taken as a whole, fails to give rise to a plausible inference of actionable conduct.” (citing Twombly, 550 U.S. at 556) (emphasis added). The Department has not asserted that Menchu's allegations, “taken as a whole, ” fail to state a claim; as Menchu correctly explains, “[d]efendant's motion does not even purport to argue that plaintiff's claims for relief lack a factual basis.” (Pl.'s Resp. at 5.)
For these reasons, the Department's motion to dismiss designated paragraphs of the FAC should be denied.
B. Motion to Strike
The Department's motion to strike designated paragraphs of the Complaint fails because: 1) the Department failed to meet the high bar for striking allegations, 2) the continuing violations doctrine applies to Menchu's claims, and 3) the designated paragraphs include conceivably relevant background information for Menchu's claims.
1. The Department failed to meet its burden on a Rule 12(f) motion
As explained above, courts in the Ninth Circuit have articulated a very high bar for movants seeking to strike allegations from pleadings. A motion may be granted when allegations “clearly could have no possible bearing” on the litigation, Platte Anchor Bolt, Inc., 352 F.Supp.2d at 1057, have “no essential or important relationship to the claim, ” Fantasy, Inc., 984 F.2d at 1527, or “are so unrelated to plaintiff's claims as to be unworthy of any consideration” and are prejudicial to movant, Thornton, 2007 WL 210586, at *1. The moving party has the burden to show designated material should be stricken. See Rees v. PNC Bank, N.A., 308 F.R.D. 266, 275 (N.D. Cal. 2015).
Here, the Department merely asserts the designated paragraphs should be stricken because the events they describe fall outside the applicable statutes of limitation. The Department does not, however, assert the paragraphs have “no possible bearing” on Menchu's claims. The Department has not explained why events occurring outside the limitation periods necessarily have no bearing on or important relationship to Menchu's claims for actions occurring within limitation periods. (See Pl.'s Resp. at 5.) Further, the Department has not alleged any of the information it seeks to strike is prejudicial. The Department has therefore failed to meet the high burden for a Rule 12(f) motion to strike.
2. Continuing Violations Doctrine
Whether events outside the limitation period are actionable depends on whether the plaintiff has alleged discrete violations or continuing violations. See Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101, 102 (2002), abrogated on other grounds, Lily Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5; Vanvalkenburg v. Or. Dep't of Corrs., No. 3:14-CV-00916- BR, 2014 WL 5494895 (D. Or. Oct. 30, 2014). “‘The continuing-violations doctrine extends the accrual of a claim if a continuing system of discrimination violates an individual's right up to a point in time that falls within the applicable limitations period.”' Vanvalkenburg, 2014 WL 5494895, at *3 (emphasis in original) (quoting Douglas v. Cal. Dep't of Youth Auth., 271 F.3d 812, 822 (9th Cir. 2001)). “‘The doctrine applies where there is no single incident that can fairly or realistically be identified as the cause of significant harm.'” Vanvalkenburg, 2014 WL 5494895, at *7 (quoting Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002)).
Though the doctrine was established in the context of Title VII claims, “[i]n the Ninth Circuit, the continuing violations doctrine applies to claims pursuant to 42 U.S.C. Sections 1981 and 1983 in the same manner as the doctrine applies to claims pursuant to Title VII . . . .” Lelaind v. City & County of San Francisco, 576 F.Supp.2d 1079, 1093 (N.D. Cal. 2008). The continuing violations doctrine also applies to Menchu's claims under state law. Hess v. Multnomah Cnty., 216 F.Supp.2d 1140, 1152 (D. Or. 2001) (discussing the similarities between Title VII and Or. Rev. Stat. Chapter 659 in the context of continuing violations).
“In Oregon, the continuing tort theory is similar to the continuing violation theory under federal law. . . . Thus, to establish a continuing violation under both state and federal law, a plaintiff must show that the untimely incidents were part of an ongoing pattern of discrimination, which continued into the applicable limitations period.”Shepard v. City of Portland, 829 F.Supp.2d 940, 955 (D. Or. 2011) (internal quotations and citations omitted).
Under the continuing violations doctrine, acts outside the limitations period remain actionable so long as they are “of the same nature” and at least one such act is alleged to have occurred within the limitations period. Vanvalkenburg, 2014 WL 5494895, at *4; see also Nat'l RR Passenger Corp., 536 U.S. at 107. “[R]epeated discriminatory employment practices” are considered to be “acts of the same nature.” Vanvalkenburg, 2014 WL 5494895, at *4 (internal quotations and citations omitted). A complaint may allege “specific acts” to support a continuing violation claim so long as the acts are of the same kind and support a common theory of recovery. Id. at *5.
The Department claims Menchu has not alleged a continuing violation. (Def.'s Rep. at 4.) While Menchu does not explicitly invoke the continuing-violations doctrine, the court must construe his pleadings favorably. Platte Anchor Bolt, Inc., 352 F.Supp.2d at 1057. Menchu does allege “[f]rom the beginning of his employment in 2013 and continuing through the present, plaintiff has experienced repeated discriminatory conduct by employees of defendant's primary clinics . . . .” (FAC at ¶ 18.) He also alleges he “has and will continue to suffer economic damages.” (Id. at ¶ 45.) Menchu includes multiple specific acts and events he alleges are discriminatory or retaliatory and does not identify any one of them as the independent cause of injury. He also alleges at least one act of discrimination or retaliation within each of the Department's proposed limitation periods. When considered in the light most favorable to Menchu, these allegations suggest a continuous nature of violations with at least one action occurring within the limitation period.
Assuming, without deciding, the Department has correctly stated the statutes of limitation for each of Menchu's claims, Menchu alleges at least one act of discrimination or retaliation within each period. Menchu alleges he learned he was not appointed to a permanent interpreter position on October 29, 2018 (FAC at ¶ 37), which falls within each limitation period proposed by the Department.
3. Even if not independently actionable, designated paragraphs are arguably relevant
Allegations in a complaint should not be stricken when they provide relevant background information or are “arguably relevant” to an actionable claim. Mitchell v. Postmaster Gen. of U.S. Postal Serv., No. 3:18-cv-01000-AC, 2020 WL 2312047, at *17 (D. Or. Feb. 20, 2020). “[A]llegations that provide background information, historical material, or other matter of an evidentiary nature will not be stricken unless unduly prejudicial to defendant.” Erhart v. Bof I Holding, Inc., 269 F.Supp.3d 1095, 1085 (S.D. Cal. 2017) (internal quotations and citations omitted). Even if Menchu is not successful with a contining-violation claim and acts beyond the limitations period therefore are not actionable, allegations of such acts are permissible to support claims that are actionable. Nat'l RR Passenger Corp., 536 U.S. at 102 (explaining even in claims for discrete discriminatory acts, allegations concerning events outside the limitations period are permissible “as background evidence to support a timely claim”).
For these reasons, the Department's motion to strike designated paragraphs of the Complaint should be denied.
Conclusion
The Motion (Def.'s Mot., ECF No. 24) should be GRANTED in part and DENIED in part, as explained above.
Scheduling Order
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, then the Findings and Recommendations will go under advisement on that date. If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.