Cohen v. United States

ASHLEY COHEN, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

No. 3:21-cv-00475-JR

United States District Court, D. Oregon

May 25, 2021

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).^[1]

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...