Gustafson v. United States Dep't of Energy

1

ZACHARY GUSTAFSON, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, BONNEVILLE POWER ADMINISTRATION, JENNIFER GRANHOLM, as Secretary of Energy, and CHAD HAMEL, an individual, Defendants.

No. 3:22-cv-00921-JR

United States District Court, D. Oregon

October 18, 2023

FINDINGS AND RECOMMENDATION

Jolie A. Russo, United States Magistrate Judge

Plaintiff Zachary Gustafson filed suit against Defendants Bonneville Power Administration (“BPA”), a federal non-profit agency that is part of the United States Department of Energy; Jennifer Granholm, the Secretary of Energy; and Chad Hamel, an employee of BPA. Defendants move to dismiss Plaintiff's Second Amended Complaint (“SAC”) pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, Defendants' motion should be granted in part and denied in part.

BACKGROUND

In 2018, Plaintiff was hired by BPA through Salient CRGT (“Salient”), a company that supplies contract workers, to work in the Fish and Wildlife Division under Hamel. SAC ¶ 7 (doc. 52). Plaintiff and Hamel had previously and successfully worked together for three years. Id.

From July 3 through 5, 2019, Plaintiff took leave under the Family Medical Leave Act (“FMLA”) to attend to his sick father. Id. at ¶ 37. On August 5, 2019 Plaintiff filed a complaint with the BPA Equal Employment Opportunity hotline, alleging Hamel mistreated several women that he supervised. Id. at ¶¶ 8-9. Plaintiff then sent a copy of the complaint to BPA's Ethic's Investigator, Dave Thatcher. Id. at ¶ 11. On August 7, 2019, Plaintiff took his second FMLA leave. Id. at ¶ 38.

On September 12, 2019, Hamel began to question individuals about any meetings held with BPA Human Resources in what Plaintiff perceived as a search to determine who filed the complaint against him. Id. at ¶ 13. Around this time Plaintiff alleges Hamel gave him the cold shoulder, socially isolated him, made snide remarks, sent disrespectful emails gave more scrutiny to his work, “bad mouthed” him to coworkers and other managers, and reported inaccurate and misleading information about his work performance and attendance. Id. at ¶ 14. Plaintiff took FMLA leave from September 13-17, October 7-14, and November 26-29 2019. Id. at ¶¶ 39-41.

On January 3, 2020, Plaintiff reported to BPA's Ombudsperson and Thatcher that Hamel was subjecting him to bullying, harassment, and retaliatory behavior. Id. at ¶ 17. Plaintiff was concerned Hamel would retaliate against him by not renewing his BPA contract. Id. at ¶¶ 17-18.

On January 14, 2020, Plaintiff reported to Thatcher that Hamel knew he was the one who had submitted the ethics complaint. That same day, Hamel reported to “BPA's supplemental labor office” that Plaintiff was “making ‘false claims'” about him. Id. at ¶¶ 19-20. On January 15, 2020, Salient notified Plaintiff that BPA was renewing his contract until February 6, 2021. Id. at ¶ 21.

On January 27, 2020, Plaintiff took another FMLA approved leave to care for his father. Id. at ¶ 42.

On January 29, 2020, Hamel questioned Plaintiff's ability to be the Environmental Compliance Lead on the Brook Trout Environmental Impact Statement Project. Id. at ¶ 22. Plaintiff sent emails to Thatcher on February 4 and 5, 2020, reiterating his concerns about bullying, harassment, and retaliation from Hamel and detailing two incidents of differential treatment. Id. at ¶¶ 23-24. On February 6, 2020, Hamel removed Plaintiff from his lead position, a decision that Hamel made in conjunction with his supervisor, and not relying on any other individuals. Id. at ¶ 25.

From February 26-April 13, 2020, Plaintiff took several separate FMLA leaves-February 26, March 3, March 4-11, March 12, April 6-13 -to attend to his sick father, who eventually passed away. Id. at ¶¶ 43-48. Also, on March 12, 2020, “BPA told Gustafson to quarantine for 14 days due to his exposure to an individual who had tested positive for COVID-19.” Id. at ¶ 46. During these leaves Plaintiff was contacted by coworkers “with work related questions and asking him to perform work.” Id. at ¶ 51.

Dory Welch, BPA's Deputy Vice President of Environment, Fish and Wildlife, conducted a workplace investigation from February 26-March 10, 2020, concerning Hamel. Id. at ¶ 26. Welch's findings were inconclusive, and, on May 11, 2020, she issued a verbal warning to Hamel and outlined expectations regarding his personnel practices. Id. at ¶¶ 26-27.

On July 1, 2020, Hamel informed Plaintiff that several of his project completion forms were late and that he had two weeks to complete them; Plaintiff timely complied. Id. at ¶ 28. On August 17, 2020, Welch denied Plaintiff's request to transfer out of Hamel's working group. Id. at ¶ 29.

On January 20, 2021, Hamel chastised Plaintiff for offering his assistance in a group email because he did not consult with Hamel beforehand to do so. Id. at ¶ 30. On January 22, 2021, after Plaintiff inquired on the status of his contract renewal, Hamel instructed him to contact Salient. Id. at ¶ 31. On February 3, 2021, Hamel emailed the working group to inform them that Plaintiff's contract was not renewed. Id. at ¶ 32. After this, Plaintiff applied for open positions with BPA but was not interviewed or hired. Id. at ¶ 33.

On June 27, 2022, Plaintiff initiated this action alleging claims for (1) employment discrimination and retaliation under Title VII and Or. Rev. Stat. § 659A.030A; (2) First Amendment violation under 42 U.S.C. § 1983; and (3) FMLA interference. He subsequently amended his complaint but did not substantively change the nature of his claims.

On November 2, 2022, Salient moved to dismiss Plaintiff's claims against it pursuant to Fed.R.Civ.P. 12(b)(6). On May 25, 2023, the Court granted Salient's motion. See generally Gustafson v. U.S. Dep't Energy, 2023 WL 3688077 (D. Or. Mar. 13), adopted by 2023 WL 3687389 (D. Or. May 25, 2023).

On July 6, 2023, Plaintiff filed his SAC alleging claims for (1) unlawful retaliation under Title VII; and (2) FMLA interference.

STANDARD OF REVIEW

Where the plaintiff “fails to state a claim upon which relief can be granted,” the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.Twombly, 550 U.S. 544, 570 (2007). For the purposes of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Regardless, bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011). And “[f]actual allegations must be enough to raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555.

DISCUSSION

Defendants seek prejudicial dismissal solely regarding Plaintiff's FMLA interference claim, which states in its entirety:

As alleged herein, Gustafson was an employee eligible for FMLA leave and Defendant BPA was a covered employees under 29 U.S. Code § 2611.

As alleged herein, Gustafson took leave to provide care psychological comfort reassurance and transportation to medical appointments his father who had a terminal brain cancer, that qualifies as serious health condition pursuant to the FMLA. Defendant BPA was aware of the purpose of his leave.

As alleged herein, Defendant BPA interfered with Gustafson's protected leave by subjecting him to work-related calls and asking and requiring him to work during his protected leave, thereby violating the 29 USC § 2615(a).

As alleged herein, Defendant BPA, through its agents, interfered with Gustafson's FMLA rights by evaluating his performance and his attendance negatively, badmouthing him to other managers and employees in violation of 29 USC § 2615(a).

As alleged herein, Defendant BPA, through its agents, interfered with Gustafson's FMLA rights by terminating him in violation of 29 USC § 2615(a).

SAC ¶¶ 62-69 (doc. 52).

To establish an interference claim under the FMLA, a plaintiff must show that: (1) he exercised his rights under the FMLA; (2) his employer subsequently engaged in activity that tends to chill the exercise of his rights; and (3) his employer's activity was motivated by the exercise of his rights. Rexwinkel v. Parsons, 162 Fed.Appx. 698, 700 (9th Cir. 2006). The key inquiry is whether the employer's conduct makes an employee “less likely to exercise their FMLA leave rights [because] they can expect to be fired or otherwise disciplined for doing so.” Olson v. U.S. Dep'tof Energy, 980 F.3d 1334, 1338 (9th Cir. 2020) (citation and internal quotations omitted); see also Bachelder v. Am. W. Airlines, 259 F.3d 1112, 1124 (9th Cir. 2001) (employer's conduct tends to chill the exercise of an employee's rights when it uses an employee's FMLA leave as a “negative factor” in taking an adverse employment action against the employee).

Defendants assert that dismissal is warranted because: Plaintiff failed to cure deficiencies previously identified by the Court, the allegations surrounding work-related phone calls while on leave and performance criticisms lack adequate supporting facts, and the temporal gap between Plaintiff's last FMLA leave, and the non-renewal of his contract was “too great” to support an inference of causation. Defs' Mot. Dismiss 5, 7-8 (doc. 55).

Plaintiff acknowledges that temporal proximity alone may not be sufficient but, in this case, “[c]ausation is...