Chouinard v. Grape Expectations, Incorporated, No. 3:2008cv00806 - Document 16 (D. Or. 2009)
Court Description: OPINION & ORDER: Denying Defendant's Motion 1-A and 1-B to Strike are GRANTED and Defendant's Motions 2-A and 2-B to Dismiss 4 is DENIED. Signed on 1/12/09 by Judge Robert E. Jones. (mkk)
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FIlED'09 J~ 1214:4OJSDC-{RP IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON DEREK N. CHOUINARD, ) Civil No. 08-806-JO ) Plaintiff, ) ) ) ~ ) GRAPE EXPECTATIONS, INCORPORATED, a Califom la foreign business corporation, Defendant. SC;:ltt N. Hunt BUSSE & HUNT 621 S.W. Morrison Street, Suite 521 Portland, OR 97205 A.ttomey for Plaintiff Allyson S. Krueger DmnyL. Hitt HIfT HILLER & MONFILS, LLP 411 S.W. Second Avenue, Suite 400 Portland, OR 97204 A.ttomeys for Defendant ) ) ) ) OPINION AND ORDER JONES, Jlldge: Plaintiff Derek Chouinard brings this action against his fonner employer, defendant Grape Expectations, Inc., asserting claims for (1) retaliatory discharge in violation of ORS 654. 1)62, (2) common law wrongful discharge, and (3) discrimination in violation of ORS 65911..030(1 )(f).l This action is now before the court on defendant's motion to strike portions of plaintiff's first claim pursuant to Federal Rule of Civil Procedure 12(f) and to dismiss plaintiff's second claim punuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim (#4). For the reasons explained below, I grant defendant's motions to strike and deny defendant's motions to dismiss. STATEMENT OF FACTS De fendant employed plaintiff from January 2007 until discharging him on September 20, 2007. Complaint, ~ 3. In his first claim, for retaliation under ORS 654.062(5), plaintiff alleges that befon: his discharge, he complained about ll what he believed in good faith were Defendant's health and safety violations," and infonned defendant that he would contact Oregon-OSHA about the violati :ms. Complaint, ~ 4. Plaintiff alleges that his conduct in opposing defendant's practices md complaining about them was a substantial factor in defendant's decision to discharge him. Complaint,' 5. In his second claim, for common law wrongful discharge, plaintiff alleges that before his discharge, he complained about not getting statutorily mandated rest periods and was harassed for taking rest periods. Complaint,' 10. Plaintiff further alleges that he infonned defendant that 1 Plaintiff voluntarily dismissed his third claim. 2 - OPINI IN AND ORDER he would I~ontact the Oregon Bureau of Labor and Industries ("BOLIn) about defendant's conduct, and that his actions with respect to rest breaks were a substantial factor in defendant's decision to discharge him. Complaint,,, 10, 12. DEFENDANT'S MOTIONS I. Motions to Strike I-A and 1-B In his first claim, for retaliation under ORS 654.062, plaintiff seeks $300,000 in compensa :ory damages for emotional distress, as well as an award of attorney fees. Defendant moves to Htrike both remedies, arguing that ORS 654.062 does not provide for compensatory damages (,r attorney fees. A. Standard of Review Pursuant to Rule 12(f), a court may strike from a pleading nany redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "A motion to strike may be used to strike the )rayer for relief where the relief sought is unavailable as a matter oflaw." Dark v. MacDona.d, 2005 WL 551967 at *2 (D. Or. 2005) (citing Tapley v. Lockwood Green Engrls. Inc., 502 F.2d 559,560 (8th Cir. 1974». B. Motion I-A: AttorneyFees Tl:e statutory remedy for violation ofORS 654.062 is nall appropriate relief including rehiring 0:: reinstatement to the employee's former position with back pay." ORS 654.062(6)(d). The statut~ does not mention attorney fees, but plaintiff contends that ORS 654.062 read in conjuncticlll with ORS 659A.885 2 permits an award. ORS 659A.885 does not; however, apply, because athough ORS 659A.885 ncross-reference[s] myriad statutes, including the 2 FormerlyORS 659.121 (1999). 3 - OPINION AND ORDER 'whistle-h.owing' provisions ofORS 659.550 (1999), [it does] not refer to ORS 654.062. 1t Mantia v. Hanson, 190 Or. App. 36, 41, 77 P.3d 1143 (2003) (footnotes omitted). Cc nsequently, because the legislature did not provide for a prevailing party fee award for violations ofORS 654.062, defendant's motion I-A to strike the claim for attorney fees is granted. C. Motion I-B: CompensatOlyDamages Plaintiff also seeks $300,000 in compensatory damages for emotional distress, again relying on both ORS 654.062 and 659A.885. Defendant moves to strike plaintiffs claim for compensa tory damages, contending that the statute does not provide for the recovery ofnoneconomic damages. Ai. discussed above, the remedies afforded by ORS 654.062 are "all appropriate relief including rehiring or reinstatement to the employee's former position with back pay." DRS 654. J62(6)(d). No Oregon state appellate court has addressed whether Itall appropriate relief' includes compensatory damages; however, the reasoning of Mantia, supra, concerning attorney fi:es compels the same conclusion with respect to compensatory damages. The remedies set forth ill ORS 659A.885 do not apply to actions under ORS 654.062. Consequently, defendant s motion I-B, to strike the claim for compensatory damages under ORS 654.062 is granted. 4 - OPINlON AND ORDER II. Ml)tions to Dismiss 2-A and 2-B Ddendant moves to dismiss plaintiffs claim for common law wrongful discharge, arguing that plaintiffhas adequate statutory remedies under ORS 654.062 and 29 V.S.C. § 660. 3 Defendan1 also argues that to the extent plaintiffs wrongful discharge claim is based on an alleged riOlt to rest breaks, that portion of the claim fails because it does not involve an important public interest. A. Standard of Review A ::laim may be dismissed pursuant to Rule 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When considering dismissal under Rule 12(b)(6), the court must take all the factual allegations and inferences in the complaint as true, even if they seem improbable. Bell Atlantic Com. v. Twombly, 127 S. Ct. 1955, 1965 (2007). '[nder Bell Atlantic, the moving party need not show that the non-moving party can prove "no set of facts" in support of the claim, however, "once a claim has been stated adequatel:r, it may be supported by showing any set offacts consistent with the allegations in the complaint. Id. at 1969. B. Motion 2-A: Adequacy of Statutory Remedy H, .ving successfully argued that plaintiff may not recover compensatory damages in connectio:l with his statutory claim, defendant now contends that plaintiffs wrongful discharge claim faih: because he has an adequate statutory remedy. Defendant refers to 29 V.S.c. § 660 but makes no particular argument concerning its applic::bility. The reference appears to be drawn from case law, including the Oregon Supreme Court decision in Walsh v. Consolidated Freightways. Inc., 278 Or. 347, 351-52, 563 P.2d 1205 (1977), not from plaintiffs complaint. 3 5 - OPINION AND ORDER In Oregon, the tort of wrongful discharge is viewed as "interstitial" in nature, meant to provide a ::emedy when an employer's conduct is unacceptable but no other adequate remedy is available. Cantley v. DSMF. Inc., 422 F.Supp.2d 1214, 1220 (D. Or. 2006)(quoting Draper v. Astoria School Dist. No. lC, 995 F. Supp. 1122, 1127 (D. Or. 1998),4 which in tum cites Walsh v. Consolidated Freightways. Inc., 278 Or. 347, 352-3, 563 P.2d 1205 (1977». Judges of this court have- described the issue of when a terminated employee can bring a wrongful discharge claim as "1 gnarly one." Cantley, supra, 422 F.Supp.2d at 1220 (citation omitted). In Draper, the court employed the following analysis for determining when a claim of wrongful discharge is not available in Oregon: "(1) an existing remedy adequately protects the public int<:rest in question, or (2) the legislature has intentionally abrogated the common law remedies hy establishing an exclusive remedy (regardless ofwhether the courts perceive that remedy to be adequate)." Draper, 995 F.Supp. at 1130-31; Cantley, 422 F.Supp.2d at 1222. n e reasoning of Draper and Cantley has been routinely followed by judges in this district to find a r on-exclusive statutory remedy to be inadequate where the statute in issue does not provide all of the damages a plaintiff may seek through the tort of wrongful discharge; in particular: compensatory damages. See. e.g., Cantley, 422 F.Supp.2d at 1223; Hemyv. Portland Developn.ent Com'n, 2006 WL 4008709 at *5 (D. Or. 2006); Walters v. Roll'n Oilfield Industries. Ltd., 2008 WL 450382 at *4-5 (D. Or. 2008). This is consistent with the position the Oregon Supreme Court articulated in Holien v. Sears. Roebuck and Co., 298 Or. 76, 689 P.2d 1291 (19E4): 4 Draper was reversed in part on other grounds in Rabkin v. Oregon Health Sci. Univ., 350 F.3d 967 (9th Cir. 2003). 6 - OPINlON AND ORDER A~ to the issue of adequacy of state and federal remedies, ORS 659.121 ... fai1[s] to capture the personal nature of the injury done to a wrongfully discharged employe as an individual and the remedies provided by the statutes fail to apJreciate the relevant dimensions of the problem. Reinstatement, back pay, and inj unctions vindicate the rights of the victimized group without compensating the pillintiff for such personal injuries as anguish, physical symptoms of stress, a sellse of degradation, and the cost of psychiatric care. Legal as well as equitable remedies are needed to make the plaintiffwhole. Holien, 2~18 Or. at 97. In this case, plaintiffhas alleged that he suffered emotional distress; whether he can prove it is not relevant to the present motion. Defendant has offered no persuasive reason why I should depart fron the reasoning of the decisions discussed above. Accordingly, defendant's motion 2- A.., to dismiss plaintiffs wrongful discharge claim for failure to state a claim, is denied. C. Motion 2-B: Rest Breaks as an Important Public Interest Phintiff claims that he was wrongfully discharged for complaining about not receiving statutoril) mandated rest periods. Defendant moves to dismiss this portion ofplaintiffs wrongful discharge claim for failure to state a claim, arguing that rest breaks do not involve an important public inti ~rest. Whether plaintiff may pursue a wrongful discharge claim for violation of a statutory] ight depends on whether plaintiff can allege and prove that he was "discharged while pursuing a right related to his role as an employe and the right is one of important public interest indicated by constitutional and statutory provisions and caselaw." Holien 298 Or. 76, 86, 689 P.2d l29~ (1984)(guoting Delaney v. Taco Time Int'l, 297 Or 10, 16,681 P.2d 114 (1984». DRS 653.015 declares it "to be the policy of the state of Oregon to establish minimum wage standards for workers at levels consistent with their health, efficiency, and general wellbeing." (iRS 653.261 provides the statutory authority for BOLl to pursue that policy by 7 - OPIN10N AND ORDER "adopt[ing] rules prescribing such minimum conditions of employment ... as may be necessary for the pnservation of the health of employees [including] minimum meal periods and rest periods.. ." Pursuant to that authority, BOLI promulgated OAR 839-020-0050, which states in relevant pm: "Except as otherwise provided, every employer shall provide to each employee an appropriate meal period and an appropriate rest period." OAR 839-020-0050(1). In Garfur v. Good Samaritan, the Oregon Supreme Court found that DRS 653.261, along with OAR 839-020-0050, "indicate that the rest break is intended to benefit the employee's physical and mental well-being." 344 Or. 525, 536, 185 P.3d 446 (2008).5 Thus, the relevant statutory md regulatory provisions, coupled with the Oregon Supreme Court's interpretation, strongly s·lggest that rest breaks relate to the health and well-being of workers and that maintainillg workers' health and well-being is an important public interest. In view of the above, in the context of this motion to dismiss, I fmd that plaintiff sufficient] y states a claim concerning rest breaks and is entitled to pursue it. Consequently, defendant motion to dismiss 2-B is denied. 5 The Garfur Court held, however, that violation of the rest period requirement does not give r se to a wage claim for additional wages based on missed rest periods. Garfur v. Good Samaritar, 344 Or. 525, 538, 185 P.3d 446 (2008). 8 - OPINl ON AND ORDER CONCLUSION Defendant's Motions (# 4) I-A and I-B to Strike are GRANTED and defendant's Motions 2-A and :~-B to Dismiss is DENIED. DATED this I~" day of January, 2009. 9 - OPIN[ON AND ORDER
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