IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CRISELDA ROMERO-MANZANO,

Plaintiff,

v.

CARLTON PLANTS, LLC, dba

CARLTON PLANTS, and CARLTON

NURSERY COMPANY, LLC,

Defendants.

3:15-CV-00508-BR

 

OPINION AND ORDER 

SHELLEY LATIN

Legal Aid Services of Oregon

P.O. Box 1327

365 S.E. Third

Pendleton, OR 97801

(541) 276-6685

JULIE R. SAMPLES

Oregon Law Center

Farmworker Office

230 N.E. Second Ave

Suite D

Hillsboro, OR 97124

(503) 726 4381 

Attorneys for Plaintiff

1 - OPINION AND ORDER

Case 3:15-cv-00508-BR Document 54 Filed 08/24/16 Page 1 of 24
MICHAEL C. PETERSEN

TRICIA M. OLSON

Heltzel Williams PC

P.O. Box 1048

Salem, OR 97308-1048

(503) 585-4422 

Attorneys for Defendants

BROWN, Judge.

This matter comes before the Court on Defendants’ Motion

(#41) for Summary Judgment. For the reasons that follow, the

Court GRANTS Defendants’ Motion and DISMISSES this matter with

prejudice.

BACKGROUND

The following facts are taken from the parties’ Joint

Statement of Agreed Material Facts and other summary-judgment

materials and are undisputed unless otherwise noted.

 Defendant Carlton Plants, LLC, is an Oregon limitedliability company that grows bare-root trees, ornamental shrubs,

and root stock on approximately 1,850 acres of land in Dayton,

Oregon. Defendant Carlton Nursery Company, LLC, is an Oregon 

limited-liability company that owns some of the land on which

Carlton Plants grows nursery stock. Carlton Nursery leases the

land to Carlton Plants. Carlton Nursery does not have any

employees and only rents and leases real property. Jon Bartch is

the sole member and registered agent of both Carlton Nursery and

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Carlton Plants. 

Carlton Plants has two main divisions: bare root and

propagation. Each division has one production manager who has

oversight over his division and the authority to hire, fire,

promote, and demote employees as well as to alter employees’ rate

of pay and to assign them to various work crews. Each division

has two area supervisors under the production manager who are

responsible for overseeing the work of crew leaders and the crews

that perform work in their divisions. Each division has a number

of crew leaders who supervise work crews. Crew leaders are

responsible for, among other things: (a) preparing the buses

used to transport workers to the fields, (b) gathering tools and

water for their crews, (c) filling out time sheets for the

laborers on their crews, (d) filling out attendance sheets, 

(e) instructing their crews how to perform their work and

monitoring that work, and (f) completing evaluations of workers. 

Although crew leaders do not have the power to hire, fire,

promote, discipline, or transfer crew members, their evaluations

of crew members are considered by the production managers and the

Human Resources Manager to make decisions about promotions, wage

increases, discipline, and transfers. Each division also has a

number of assistant crew leaders who assist crew leaders with the

daily work of the crew. 

Plaintiff Criselda Romero-Manzano worked for Carlton Plants

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from 2003 to 2014. During the relevant period Plaintiff worked

in the bare-root division, Carlton Davidson was the production

manager of the bare-root division, and Rosalio Rivera was one of

Plaintiff’s area supervisors. Until January 2012 Plaintiff was

assigned to work with Crew Leader Joe Arguello.1 After January

2012 Plaintiff was assigned to work as an assistant crew leader

with Crew Leader Jose Carrillo. 

On April 2, 2013, Plaintiff met privately with Carlton

Plants’ Human Resource Manager Sandra Siguenza. Plaintiff

advised Siguenza that Carrillo was sexually harassing her. 

Plaintiff told Siguenza that Carrillo periodically made Plaintiff

work separately from the rest of her crew and that he called her

outside of work to ask her out on dates.2 Plaintiff did not

provide any other details or instances of harassing conduct in

her meeting with Siguenza. Plaintiff told Siguenza that she did

not want to work with Carrillo any longer and requested to be

transferred to a different crew leader. Siguenza advised

Plaintiff that she would transfer her immediately. Siguenza

asked Plaintiff to provide her with a written statement that

included any other details regarding harassment by Carrillo. 

1

 It is not clear on the record whether Plaintiff was an

assistant crew leader under Arguello or only a member of his

crew.

2 The record reflects Plaintiff did not tell Siguenza when

Carrillo called her to ask her out, but Plaintiff believes it was

in 2009.

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Plaintiff, however, never provided Siguenza with a written

statement or any other statement regarding harassment by

Carrillo. 

On April 3, 2013, following her meeting with Plaintiff,

Siguenza called Davidson and requested he assign Plaintiff to a

different crew leader. On April 4, 2013, Davidson reassigned

Plaintiff to Crew Leader Sam Hernandez. Plaintiff’s work hours,

position, duties, rate of pay, and all other work benefits

remained the same after her transfer to Hernandez’s crew. 

Plaintiff testified at deposition that the harassment by Carrillo

stopped after Plaintiff’s April 3, 2013, meeting with Siguenza,

and Plaintiff did not lodge any further complaints against

Carrillo.

Plaintiff worked at Carlton Plants through mid-July 2013 on

crews other than those run by Carrillo. In July 2013 Plaintiff

went on leave due to a work injury. Plaintiff was terminated in

April 2014 after she exhausted her medical leave. The parties

agree Plaintiff’s termination was unrelated to the allegations in

this matter.

On December 30, 2013, Plaintiff co-filed a charge of

discrimination with the Oregon Bureau of Labor and Industries

(BOLI) and the Equal Employment Opportunity Commission (EEOC)

against Carlton Nursery only. Plaintiff alleged claims for

hostile work environment and retaliation for filing a workers’

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compensation claim.3

On December 14, 2014, BOLI issued Plaintiff a Notice of

Right to File Civil Suit advising Plaintiff that she must file an

action against Carlton Nursery related to the allegations in her

BOLI complaint within 90 days of the date of the Notice or her

claims would be barred.

On March 25, 2015, the EEOC issued Plaintiff a Notice of

Right to Sue advising Plaintiff that she must file an action

against Carlton Nursery related to the allegations in her

complaint within 90 days of the date of the EEOC Notice or her

claims would be barred.

On March 26, 2015, Plaintiff filed a Complaint in this Court

against Carlton Nursery only in which she asserted claims for

hostile work environment in violation of Title VII, 42 U.S.C. 

§ 2000e-2, and sex discrimination in violation of Oregon Revised

Statute § 659A.030(1)(a)-(b).

On May 13, 2015, Carlton Nursery filed an Answer and

Affirmative Defenses in which it denied Plaintiff’s allegation

that it was Plaintiff’s employer and asserted several affirmative

defenses based on the fact that Carlton Nursery was not

Plaintiff’s employer.

On June 19, 2015, Plaintiff filed an Amended Complaint to

add Carlton Plants as a defendant. Plaintiff asserted the same

3

 Plaintiff does not assert a claim for retaliation.

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claims for hostile work environment in violation of Title VII and

sex discrimination in violation of Oregon Revised Statute 

§ 659A.030(1)(a)-(b).

On June 30, 2015, Carlton Plants filed an Answer to

Plaintiff’s Amended Complaint in which it asserted six

Affirmative Defenses including Plaintiff’s alleged failure to

exhaust administrative remedies and claims time-barred under the

statute of limitations.

On May 18, 2016, Defendants filed a Motion for Summary

Judgment. The Court took Defendants’ Motion under advisement on

July 8, 2016. 

STANDARDS

Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011). See also Fed. R.

Civ. P. 56(a). The moving party must show the absence of a

dispute as to a material fact. Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005). In response to a properly

supported motion for summary judgment, the nonmoving party must

go beyond the pleadings and show there is a genuine dispute as to

a material fact for trial. Id. "This burden is not a light one

. . . . The non-moving party must do more than show there is

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some 'metaphysical doubt' as to the material facts at issue." In

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)

(citation omitted). 

A dispute as to a material fact is genuine "if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). The court must draw all

reasonable inferences in favor of the nonmoving party. Sluimer

v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary

judgment cannot be granted where contrary inferences may be drawn

from the evidence as to material issues." Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted). A “mere

disagreement or bald assertion” that a genuine dispute as to a

material fact exists “will not preclude the grant of summary

judgment.” Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)

(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.

1989)). When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive

evidence than otherwise would be necessary." LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted). 

The substantive law governing a claim or a defense

determines whether a fact is material. Miller v. Glenn Miller

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Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the

resolution of a factual dispute would not affect the outcome of

the claim, the court may grant summary judgment. Id.

DISCUSSION

Defendants move for summary judgment as to both of

Plaintiff’s claims on the grounds that (1) Carlton Nursery did

not employ Plaintiff; (2) Plaintiff’s claims against Carlton

Plants are time-barred; and (3) even if Carlton Nursery was

Plaintiff’s employer and/or Plaintiff’s claims against Carlton

Plants are not time-barred, Plaintiff fails to establish a

material dispute of fact exists as to her claims.

I. Carlton Nursery was not Plaintiff’s employer.

As noted, Defendants move for summary judgment as to

Plaintiff’s claims against Carlton Nursery on the ground that

Carlton Nursery was not Plaintiff’s employer and, therefore,

cannot be liable to Plaintiff as a matter of law under Title VII

or § 659A.030.

Title VII provides in relevant part: “It shall be an

unlawful employment practice for an employer - (1) to . . .

discriminate against any individual with respect to [her]

compensation, terms, conditions, or privileges of employment,

because of such individual's . . . sex.” 42 U.S.C. § 2000e2(a)(1)(emphasis added). An “employer” is defined as “a person

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engaged in an industry affecting commerce who has fifteen or more

employees.” 42 U.S.C. § 2000e(b). An “employee” is defined as

“an individual employed by an employer.” 42 U.S.C. § 2000e(f).

Similarly, Oregon Revised Statute § 659A.030(1)(b) provides

in relevant part: “It is an unlawful employment practice: For

an employer, because of an individual's . . . sex . . . to

discriminate against the individual in compensation or in terms,

conditions or privileges of employment.” Emphasis added. An

employer is defined as “any person who . . . directly or 

through an agent, engages or uses the personal service of one or

more employees, reserving the right to control the means by 

which such service is or will be performed.” Or. Rev. Stat. 

§ 659A.001(4)(a). Thus, Title VII and Oregon statutes prohibit

discrimination by “an employer.”

Defendants note Carlton Nursery and Carlton Plants are

separate and distinct corporate entities, and Plaintiff was hired

by and worked only for Carlton Plants. The record reflects

Carlton Nursery is a limited-liability company organized and

operating for the sole purpose of owning real property that it

leases to Carlton Plants for cultivation. Carlton Nursery has

never had any employees. According to Defendants, because

Carlton Nursery was not Plaintiff’s employer, it cannot be 

liable to Plaintiff as a matter of law under either Title VII or

§ 659A.030. See, e.g., Coffin v. Safeway, Inc., 323 F. Supp. 2d

10 - OPINION AND ORDER

Case 3:15-cv-00508-BR Document 54 Filed 08/24/16 Page 10 of 24
997, 1002 (D. Ariz. 2004)(dismissing the plaintiff’s Title VII

sexual harassment claim against a party who was not the

plaintiff’s employer).

Plaintiff concedes she was “directly employed” by Carlton

Plants and that Carlton Nursery is a separate corporate entity

from Carlton Plants. Nevertheless, Plaintiff asserts Carlton

Nursery should be liable for “the discriminatory acts” of Carlton

Plants under the “integrated-enterprise” test. Plaintiff asserts

courts have applied the integrated-enterprise test to hold one

corporate entity liable for the acts of a separate corporate

entity. As Defendants point out, however, courts have used the

integrated-enterprise test only to determine whether an employer

with less than 15 employees is so interconnected with another

employer that the number of both employers should be aggregated

for the sole purpose of meeting the 15-employee requirement of

Title VII. For example, in Kang v. U Lim America, Inc., the

plaintiff worked for a California corporation, U Lim America,

which employed six or fewer employees. U Lim America also owned

and operated U Lim de Mexico, a separate corporation that

employed between 50 and 150 workers. The plaintiff brought an

action for national-origin discrimination in violation of Title

VII against U Lim America, who asserted it was not covered by

Title VII because it employed fewer than 15 people. The Ninth

Circuit applied the integrated-enterprise test to evaluate

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whether the numbers of employees at U Lim America and U Lim de

Mexico should be combined solely for the purpose of determining

whether U Lim America should be considered as meeting the 15-

employee requirement of Title VII. 296 F.3d 810, 815 (9th Cir.

2002). The Ninth Circuit concluded the number of employees at U

Lim America should be aggregated with the number of employees at

U Lim de Mexico, and, therefore, U Lim America met the 15-

employee requirement of Title VII. Id. at 815-16. The Ninth

Circuit, however, did not conclude (and the plaintiff did not

argue) that, as a result of the integrated-enterprise test, U Lim

de Mexico was also liable under Title VII as the plaintiff’s

employer. Although the Ninth Circuit has applied the integratedemployer test to combine the workforces of separate corporate

employers to determine Title VII jurisdiction, it has not used

the test to determine as a matter of law that both entities are

employers of a particular employee. In fact, in Anderson v.

Pacific Maritime Association the Ninth Circuit specifically

rejected the parties’ assertion that the integrated-employer test

could be used to impose joint liability on the remaining

nonemployer defendant. 336 F.3d 924 (9th Cir. 2003). 

In Anderson the plaintiffs brought an action under Title VII

against the shipping and stevedoring companies that hired the

plaintiffs; four chapters of their Union; and PMA, a nonprofit

association of the stevedoring and shipping companies. The

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plaintiffs alleged they were subjected to a racially hostile work

environment. At some point the plaintiffs filed an amended

complaint asserting Title VII claims against the union and PMA

only. Ultimately the plaintiffs’ claims against the union were

dismissed, and the district court entered summary judgment for

PMA on the ground that PMA was not the plaintiffs’ employer under

Title VII. Id. at 928. In granting summary judgment the

district court concluded, among other things, that the

integrated-employment test was inapplicable to determine PMA’s

liability. The Ninth Circuit affirmed the district court’s grant

of summary judgment noting:

The district court's reluctance [to apply the

integrated-employer test to determine PMA’s

liability] was justified. The test does not

determine joint liability as the parties suggest,

but instead determines whether a defendant can

meet the statutory criteria of an “employer” for

Title VII applicability.

Title VII applies to an employer only if that

employer employs 15 or more employees. 42 U.S.C.

§ 2000e(b); see also Clackamas Gastroenterology

Assocs., P.C. v. Wells, 538 U.S. 440 (2003). A

plaintiff with an otherwise cognizable Title VII

claim against an employer with less than 15

employees may assert that the employer is so

interconnected with another employer that the two

form an integrated enterprise, and that

collectively this enterprise meets the 15–

employee minimum standard. We use the integrated

enterprise test to judge the magnitude of

interconnectivity for determining statutory

coverage. 

PMA does not dispute that it employs at least 15

employees. . . . PMA’s status as an employer in

its own right[, however,] does not mean that a

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claim by the Plaintiffs, who were not PMA’s

employees, is cognizable under Title VII. 

Id. at 928-29 (emphasis in original). This Court, therefore,

declines to apply the integrated-enterprise test as a means of

determining whether Carlton Nursery may be liable as Plaintiff’s

employer.

Plaintiff also suggests Carlton Nursery may be held liable

either through piercing the corporate veil or the alter-ego

doctrine. Courts have repeatedly made clear that corporations

are separate and individual entities that are not liable for the

acts of other corporations. See, e.g., Crystal Cruises, Inc. v.

Moteurs Leroy-Somer S.A., 545 F. App’x 647, 647-48 (9th Cir.

2013)(“Corporations are treated as separate and distinct

entities.”). Thus, “piercing the corporate veil ‘is an

extraordinary remedy which exists as a last resort, [when] there

is no other adequate and available remedy to repair plaintiff's

injury.’” State ex rel. Neidig v. Superior Nat. Ins. Co., 343

Or. 434, 445 (2007)(quoting Amfac Foods v. Int'l Systems, 294 Or.

94, 103 (1982)). “The equitable power to pierce the corporate

veil . . . is exercised only [when] there is clear evidence that

those who control the corporation have used it to shield

themselves improperly from responsibility.” AFD China

Intellectual Prop. Law (USA) v. AFD China Intellectual Prop. Law

Office, 3:09-CV-1509-BR, 2014 WL 2619644, at *7 (D. Or. June 12,

2014)(citing Salem Tent & Awning Co. v. Schmidt, 79 Or. App. 475

14 - OPINION AND ORDER

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(1986)). Courts will also pierce the corporate veil under the

appropriate circumstances to prevent fraud and inequity. Id.

Under Oregon law shareholders of a corporation may be held

liable if the corporation is a “mere 'instrumentality' or 'alter

ego' and [when] fraud or injustice has resulted.” Brodle v.

Lochmead Farms, Inc., No. 10–cv-6386–AA, 2011 WL 4913657, at *6

(D. Or. Oct. 13, 2011)(quoting Amfac Foods, Inc. v. Int’l Sys. &

Controls Corp., 294 Or. 94, 105 (1982)). As the court explained

in Brodle, “[g]enerally alter ego liability applies to

shareholders.” 2011 WL 4913657, at *6. When a plaintiff has

failed to show a corporation has an ownership interest in another

corporation, alter-ego liability will not apply because “[i]t is

not enough [for liability of a separate corporation] to merely

claim that the [separate] corporations share employees and

business practices — some evidence of an ownership interest is

required for liability to attach.” Id. The record here does not

reflect Carlton Nursery and Carlton Plants share employees or

that Carlton Nursery has any ownership interest in Carlton

Plants. As noted, they are, in fact, two entirely separate,

unrelated corporations.

Even if the alter-ego or veil-piercing theory applied to

separate corporations such as Carlton Nursery and Carlton Plants,

Plaintiff fails to establish such an extreme approach is

warranted here. To hold an affiliated corporation liable under

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an alter-ego theory under Oregon law, the court must find: 

(1) the affiliated corporation “actually controlled”

the other corporate entity;

(2) the affiliated corporation “used its control over

the corporation to engage in improper conduct”;

(3) as a result of the improper conduct, the plaintiff

was harmed; and

(4) there is no other adequate and available remedy to

repair plaintiff's injury.

Brodle, 2011 WL 4913657, at *6 (citations omitted). Improper

conduct includes: (a) gross undercapitalization of the

corporation, (b) milking the corporation by payment of excessive

dividends, (c) misrepresentation, (d) commingling of assets, and

(e) not holding out the corporate entity as a separate

enterprise. Amfac, 294 Or. at 109-10. Plaintiff relies on

alleged control of Carlton Plants by John Bartch, the sole member

of Carlton Plants and Carlton Nursery, to support her assertion

that the Court should pierce the corporate veil of Carlton

Nursery and hold it liable for Carlton Plants. Although

Plaintiff concedes Carlton Nursery and Carlton Plants do not

share personnel or payroll services, Plaintiff notes Carlton

Plants pays rent to Carlton Nursery and Bartch is the sole member

of both Carlton Nursery and Carlton Plants. Plaintiff also

asserts Bartch makes “employment decisions” for Carlton Plants

and relies on Bartch’s deposition testimony to support her

assertion. In his deposition, however, Bartch does not state he

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makes the employment decisions for Carlton Plants. During

Bartch’s deposition Plaintiff’s counsel asked him whether he was

“the person ultimately in control of every decision that is made

for Carlton Plants?” Bartch responded: “Again, that’s a very

broad statement. . . . I’m responsible for the business dealings

with Carlton Plants.” Bartch Depo. at 23. 

More importantly, Plaintiff does not point to any evidence

in the record of gross undercapitalization of Carlton Nursery,

payment of any dividends by Carlton Nursery, any

misrepresentation by Carlton Nursery, or any failure of Carlton

Nursery to hold itself out as a separate enterprise from Carlton

Plants. Plaintiff also fails to show that there is not any

“other adequate and available remedy to repair plaintiff's

injury” or to establish that fraud or inequity will result if the

Court declines to pierce Carlton Nursery’s corporate veil. 

Amfac, 294 Or. at 103. 

On this record the Court concludes Plaintiff has not

established “clear evidence that those who control the

corporation have used it to shield themselves improperly from

responsibility.” AFD China, 2014 WL 2619644, at *7. The Court,

therefore, declines to exercise its equitable power to pierce

Carlton Nursery’s corporate veil and to hold it liable for the

actions of Carlton Plants. Thus, Plaintiff has not established

Carlton Nursery was her employer, and, therefore, Carlton Nursery

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is not liable to Plaintiff under either Title VII or § 659A.030

as a matter of law.

Accordingly, the Court grants Defendants’ Motion for Summary

Judgment as to Plaintiff’s claims against Carlton Nursery.

II. Plaintiff’s Title VII Claim against Carlton Plants is timebarred.

Defendants seek summary judgment as to Plaintiff’s Title VII

Claim against Carlton Plants on the ground that it is timebarred.

A plaintiff must file a timely charge of discrimination with

the EEOC as a prerequisite to bringing an action under Title VII. 

42 U.S.C. § 2000e–5(e)(1), which requires a complainant to file a

charge with the EEOC within 180 days “after the alleged unlawful

employment practice occurred” unless the complainant “initially

institute[s] proceedings with a State or local agency,” in which

case the complainant must file an EEOC charge within 300 days. 

The record reflects Plaintiff’s alleged harassment by

Carrillo ended no later than April 2, 2013. Plaintiff filed her

EEOC/BOLI complaint against Carlton Nursery only on December 30,

2013. Defendants note 300 days before December 30, 2013, is

March 5, 2013, and, therefore, Plaintiff may not base her claim

on any alleged harassment that occurred before March 5, 2013. 

More importantly, the record reflects Plaintiff failed to comply

with the prerequisite to filing a Title VII complaint set out in

42 U.S.C. § 2000e–5(e)(1) because Plaintiff did not file an EEOC

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or BOLI complaint against Carlton Plants. The Supreme Court and

Ninth Circuit have made clear that “[a]n individual's failure to

file a charge with the agency within [the] time frame [set out in

§ 2000e-5(e)(1)] will usually operate to bar that person from

bringing a lawsuit for failure to exhaust their administrative

remedies.” Ariz. ex rel Horne v. Geo Group, Inc., 816 F.3d 1189,

1202 (9th Cir. 2016)(citing Zipes v. Trans World Airlines, Inc.,

455 U.S. 385, 393–94 (1982)). In addition, Plaintiff cannot now

exhaust her administrative remedies by filing an EEOC complaint

against Carlton Plants because, as noted, it has been more than

300 days since the last possible act of discrimination. 

In her Response Plaintiff asserts the continuing-violation

doctrine applies to her Title VII claim, and, therefore, the

Court may consider all of Carrillo’s acts of harassment because

Plaintiff has alleged at least one act of harassment occurred

after March 5, 2013. Plaintiff’s continuing-violation argument

however, relies on the EEOC complaint she filed as to Carlton

Nursery only. Plaintiff does not cite any authority for the

proposition that filing an EEOC complaint against one corporation

satisfies the exhaustion requirement of § 2000e-5(e)(1) as to a

different, separate corporation, and, as noted, the Court has

already concluded Carlton Plants and Carlton Nursery are two

separate and distinct corporations and has declined to pierce the

corporate veil of Carlton Nursery or to apply the alter-ego

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theory to Carlton Nursery and Carlton Plants. The Court,

therefore, concludes Plaintiff has failed to satisfy the

exhaustion requirement of § 2000e-5(e)(1). In addition, it has

been more than 300 days since the last possible act of harassment

(which occurred no later than April 2, 2013), and, therefore,

Plaintiff may not now timely file an EEOC complaint against

Carlton Plants.

Plaintiff also does not point to any evidence or make any

allegations from which the Court could infer that equitable

tolling of the exhaustion period would be appropriate. The Ninth

Circuit has explained “[e]quitable tolling focuses on whether

there was excusable delay by the plaintiff and may be applied if,

despite all due diligence, a plaintiff is unable to obtain vital

information bearing on the existence of his claim.” Huseman v.

Icicle Seafoods, Inc., 471 F.3d 1116, 1120 (9th Cir. 2006)

(quotation omitted)(emphasis in Huseman). See also Burnett v.

New York Cent. R. Co., 380 U.S. 424, 429 (1965)(allowing

equitable tolling when “a plaintiff has not slept on his rights,

but rather, has been prevented from asserting them.”). Plaintiff

does not allege she was mistaken or confused as to the fact that

Carlton Plants was her employer. In fact, the parties note in

their Joint Statement of Material Facts that when she began

working for Carlton Plants, Plaintiff received a copy of the

“Carlton Plants Employee Handbook” and signed an Acceptance of

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the Handbook. The parties also agree in their Joint Statement

that the Carlton Plants Handbook contained a policy against

harassment that advised employees to report harassment to two

Carlton Plants supervisors or Jon Bartch. In addition, Plaintiff

does not allege she was unable to file a timely EEOC/BOLI

complaint against Carlton Plants for any reason.

Accordingly, the Court grants Defendants’ Motion for Summary

Judgment as to Plaintiff’s Title VII claim against Carlton

Plants.

III. Plaintiff’s § 659A.030 Claim against Carlton Plants is timebarred.

Defendants move for summary judgment as to Plaintiff’s

state-law claim for hostile work environment in violation of 

§ 659A.030 against Carlton Plants on the ground that it is timebarred.

Oregon Revised Statute § 659A.875(1) and (2) provide in

relevant part:

(1) . . . [A] civil action . . . alleging an

unlawful employment practice must be commenced

within one year after the occurrence of the

unlawful employment practice unless a complaint

has been timely filed [with BOLI].

(2) A person who has filed a [BOLI] complaint 

. . . must commence a civil action under ORS

659A.885 within 90 days after a 90-day notice is

mailed to the complainant under ORS 659A.880.

Thus, an individual who alleges an unlawful employment practice

must bring an action either within one year of the occurrence of

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Case 3:15-cv-00508-BR Document 54 Filed 08/24/16 Page 21 of 24
the unlawful practice or, if an individual has filed a BOLI

complaint, within 90 days after BOLI has mailed its 90-day Notice

letter. 

As noted, Plaintiff’s alleged harassment by Carrillo ended

no later than April 2, 2013. Plaintiff did not file her original

Complaint in this Court until March 26, 2015, which is more than

one year after the last possible date of harassment. In order

for her state-law claim to be timely, therefore, Plaintiff was

required to file it not more than 90 days after BOLI mailed her

the 90-day Notice letter. As noted, BOLI sent Plaintiff a rightto-sue Notice as to Carlton Nursery (the only party against whom

she asserted her BOLI complaint) on December 30, 2014. Even if

Plaintiff’s BOLI complaint filed only against Carlton Nursery

could be interpreted to encompass Plaintiff’s state-law claim

against Carlton Plants, the claim would be time-barred because

Plaintiff failed to file her original Complaint against Carlton

Nursery until March 26, 2015, which is 103 days after BOLI sent

Plaintiff’s 90-day Notice Letter.4

 

The record reflects Plaintiff received her Notice of Right

to Sue from the EEOC on March 25, 2015, which is only one day

before she filed her original Complaint in federal court. This

Court and other courts in Oregon, however, have held a

4 Plaintiff did not file her Amended Complaint adding

Carlton Plants as a party until June 19, 2015, which is nearly

seven months after BOLI sent Plaintiff a 90-day Notice Letter.

22 - OPINION AND ORDER

Case 3:15-cv-00508-BR Document 54 Filed 08/24/16 Page 22 of 24
plaintiff's state-law claims under § 659A are time-barred when

they are filed more than 90 days after the mailing of the BOLI

letter even if filed less than 90 days after the plaintiff

receives an EEOC right-to-sue letter. See, e.g., Sharer v.

Oregon, 481 F. Supp. 2d 1156, 1164 (D. Or. 2007)(concluding the

plaintiff’s state-law whistleblower claim under § 659A was

time-barred because it was filed more than 90 days after the

mailing of the BOLI letter but less than 90 days after the

plaintiff received an EEOC right-to-sue letter)(citing Snook v.

Rabold, No. CV 06–849–MO, 2006 WL 2934274 (D. Or. Oct. 12, 2006),

and Chestnut v. Fred Meyer Jewelry, Inc., No. Civ. 02–3088–CO,

2004 WL 1900556 (D. Or. Aug. 24, 2004)). Thus, because Plaintiff

did not file her original Complaint against Carlton Nursery in

this Court within 90 days of BOLI mailing her 90-day Notice

letter, the fact that she filed her original Complaint within 90

days of receipt of her EEOC right-to-sue letter does not render

her state-law claims timely. 

Accordingly, the Court grants Defendants’ Motion for Summary

Judgment as to Plaintiff’s state-law claim against Carlton

Plants.

CONCLUSION

For these reasons, the Court GRANTS Defendants’ Motion (#41) 

23 - OPINION AND ORDER

Case 3:15-cv-00508-BR Document 54 Filed 08/24/16 Page 23 of 24
for Summary Judgment and DISMISSES this matter with prejudice.

IT IS SO ORDERED.

DATED this 24th day of August, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

24 - OPINION AND ORDER

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