IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

TRACY E. TAYLOR,

No. 3:15-cv-00023-HZ

Plaintiff,

OPINION & ORDER

v.

FIRST TECHNOLOGY FEDERAL 

CREDIT UNION, an Oregon corporation,

and DOES 1 through 20,

Defendants.

Tracy E. Taylor

6263 NE Dereck Ln. 

Hillsboro, OR 97124

Pro Se Plaintiff

Mitchell C. Baker

Alexander A. Wheatley

FISHER & PHILLIPS, LLP

111 SW Fifth Avenue, Suite 4040

Portland, OR 97204

Attorneys for Defendant

1 – OPINION & ORDER

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HERNÁNDEZ, District Judge:

Pro se Plaintiff Tracy Taylor was terminated from her employment with Defendant First 

Technology Federal Credit Union (FTFCU). Plaintiff brings this action against FTFCU and 

“DOES 1 through 20,” alleging violations of federal and state laws. Defendants move for partial 

dismissal of Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6), for failure to state 

a claim upon which relief can be granted.

Plaintiff brings eleven claims against Defendants: (1) hostile work environment based on 

gender in violation of 42 U.S.C. § 2000e; (2) national origin harassment and discrimination in 

violation of 42 U.S.C. § 1981; (3) retaliation in violation of 42 U.S.C. § 2000e-3(a); (4) 

retaliation in violation of 42 U.S.C. § 1981; (5) wrongful termination in violation of public 

policy; (6) intentional infliction of emotional distress; (7) failure to provide adequate rest 

periods; (8) interference with prospective economic relations; (9) defamation; (10) intentional 

violation of FMLA; and (11) intentional violation of FTFCU’s internal definition of harassment.

First Amended Complaint (“Compl.”) at ¶¶ 36 – 123. 

Defendants move to dismiss Claims 1-4, 6-8, and 10-11. The Court grants Defendants’

partial motion to dismiss.

BACKGROUND

Defendant FTFCU, an Oregon corporation, owns and operates various banking 

institutions, branches, and investment offices. Compl. ¶ 2. “DOES 1 through 20” are fictitiously 

named Defendants—agents, servants, employees, or representatives of FTFCU who are 

“responsible in some manner for the occurrences” alleged. Id. at ¶¶ 5, 6. Plaintiff attaches a 

“Personnel List” to the First Amended Complaint that contains the name of seven “agents of 

2 – OPINION & ORDER

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Defendant.” See Compl. Att. 1, ECF 7-1. The Court construes this list of names as comprising 

seven of the twenty “DOES” named as Defendants.

Between September 17, 2012 and November 7, 2014, Plaintiff was a loan processor and 

quality assurance analyst employed by FTFCU. Id. at ¶ 2. Plaintiff’s job duties included auditing 

FTFCU’s compliance with lending regulations. Id. at ¶ 15. Early in Plaintiff’s employment, she 

informed FTFCU management that FTFCU was “not complying with federal lending rules.” Id.

at ¶ 14.

Plaintiff alleges that, “from the beginning of her employment” and throughout her time 

working as a loan processor, FTFCU managers and human resources (HR) executives harassed 

her at work. Id. at ¶ 13. FTFCU management’s comments to Plaintiff included: “You’re asking 

too many questions,” “You’re overthinking the rules, just get the file done,” “The rule doesn’t 

apply,” “That’s not how we do it here at First Tech,” “Don’t worry about it,” “Just finish the 

file,” “Just focus on your docs getting out,” and “You’re not getting enough docs out.” Id. at ¶ 

14. 

In June 2014, Plaintiff was assigned a new position, quality assurance analyst. FTFCU 

management continued making “inappropriate and derogatory comments.” Id. at ¶ 15. Plaintiff 

attempted to inform HR of Plaintiff’s managers’ actions; this led to “a substantial escalation in 

the actions creating a hostile work environment.” Id. at ¶ 15.

During the month of September 20141, Plaintiff was “very sick and attempted to use 

family medical leave.” Id. at ¶ 23. During this time, she was repeatedly asked inappropriate 

questions by her managers, James and Marilyn.2 Plaintiff was also asked to provide “personal 

1 Reading paragraph 23 in the context of the entire Complaint, the Court assumes Plaintiff refers to events 

that occurred in September 2014, even though she fails to indicate a specific year. See Compl. ¶ 23. 

2 Plaintiff does not provide the last names for several individuals referenced in the Complaint, including 

James and Marilyn.

3 – OPINION & ORDER

 

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and protected information” in order “not to be written up for her absence from work.” Id. at ¶ 23. 

Plaintiff told James and Marilyn that their questions violated the Family Medical Leave Act 

(FMLA) and the Health Insurance Portability and Accountability Act (HIPAA), and made 

Plaintiff feel harassed and afraid. Id.

Plaintiff claims that her gender exacerbated the hostile work environment. Generally, 

Plaintiff alleges that women were treated differently than men at FTFCU, “in terms of the tone 

and attitude taken towards [women].” Id. at ¶ 31. Specifically, Plaintiff alleges that her manager, 

James, had a hostile form of communicating with Plaintiff and other female employees, and that 

James’ “physical contact was unwelcome.” Id. at ¶ 17.

In an October 24, 2014 meeting, Plaintiff shared her concerns about James’ behavior with 

James and Marilyn. Id. Plaintiff spoke about “the repeated physical contact by James” and stated 

that Plaintiff had been “scared ever since [James’] hostile altercation with Plaintiff back in 

August 2014.” According to Plaintiff, “James’ hostility toward Plaintiff was the worst when 

Plaintiff was confined in a private room with the door closed.” Id. at ¶ 21.

In the same meeting, Plaintiff informed Marilyn that “Marilyn was falsely accusing and 

confronting Plaintiff . . . in a manner that was very unprofessional, accusatory, and 

derogatory[.]” Id. Plaintiff told Marilyn to “please choose your words carefully.” Id. Soon after 

this meeting, Marilyn moved Plaintiff’s workspace to a new location. Id. at ¶ 22. Marilyn did not 

communicate to Plaintiff how moving her workspace resolved any of Plaintiff’s concerns. Id.

On October 31, 2014, Plaintiff met with Kim, “the Team Lead [with whom] Marilyn 

indicated that Plaintiff could communicate her concerns[.]” Id. at ¶ 21. Plaintiff told Kim that 

Plaintiff was uncomfortable with Marilyn’s decision to move Plaintiff’s workspace. Id. Plaintiff 

perceived Marilyn’s actions as punishment for Plaintiff sharing her concerns. Id.

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On November 4, 2014, Plaintiff met with Marilyn and Justin, an HR employee. Id. at ¶ 

19. Justin disregarded and dismissed Plaintiff’s concerns about a hostile work environment. Id. 

Plaintiff was given a written warning because she was “disrespectful and showing an

unwillingness to be cooperative[.]” Id. Plaintiff refused to sign the warning, despite Justin’s 

insistence that she sign the document. Id. at ¶ 20. Plaintiff requested, but Justin refused, an 

explanation in writing about how HR or Marilyn was addressing Plaintiff’s concerns about a 

hostile work environment. Id. at ¶ 24. 

On November 5, 2014, Plaintiff contacted FTFCU’s toll-free reporting line and filed an 

official complaint. Id. at ¶ 25. On or about November 6, 2014, Plaintiff was informed that HR

would meet with her. Id. at ¶ 34. Plaintiff was told that she could not bring anyone with her to 

the meeting. Id. On November 7, 2014, Plaintiff was terminated. Id. at ¶ 25.

STANDARDS

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency 

of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “All allegations of material 

fact are taken as true and construed in the light most favorable to the nonmoving party.” Am. 

Family Ass'n, Inc. v. City & Cnty. of S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). However, the 

court need not accept conclusory allegations as truthful. See Warren v. Fox Family Worldwide, 

Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (“[W]e are not required to accept as true conclusory 

allegations which are contradicted by documents referred to in the complaint, and we do not 

necessarily assume the truth of legal conclusions merely because they are cast in the form of 

factual allegations.”) (internal quotation marks, citation, and alterations omitted). Rather, to state 

a plausible claim for relief, the complaint “must contain sufficient allegations of underlying 

facts” to support its legal conclusions. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 

5 – OPINION & ORDER

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A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the 

“grounds” of his “entitlement to relief” with nothing “more than labels and conclusions, and a 

formulaic recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the 

speculative level on the assumption that all the allegations in the complaint are true (even if 

doubtful in fact)[.]" Id. (citations and footnote omitted).

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[,]" meaning "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) 

(internal quotation marks omitted). A complaint must contain "well-pleaded facts" which "permit 

the court to infer more than the mere possibility of misconduct[.]" Id. at 679. 

“A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however 

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 

lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 

106 (1976)) (citations omitted).

DISCUSSION

I. Claims 1 and 3—Title VII

Plaintiff’s first and third claims allege violations of 42 U.S.C. § 2000e, Title VII of the 

Civil Rights Act of 1964. Claim 1 alleges that Plaintiff was discriminated against based on her 

gender and Claim 3 alleges that she was retaliated against for complaining about a hostile work 

environment. 

6 – OPINION & ORDER

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In order to bring a Title VII cause of action in a district court, a plaintiff must first 

exhaust her administrative remedies. Greenlaw v. Garrett, 59 F.3d 994, 997 (9th Cir. 1995) 

(citing Brown v. General Services Administration, 425 U.S. 820, 832 (1976)). To exhaust 

administrative remedies under Title VII, a complainant must file a timely charge with the Equal 

Employment Opportunity Commission (EEOC) and allow the agency time to investigate the 

charge. Lyons v. England, 307 F.3d 1092, 1103-04 (9th Cir. 2002); Weeg ex rel. Weeg v. Ortiz 

& Associates, Inc., 556 F. Supp. 2d 1188, 1190 (D. Or. 2008); see also Wiley v. Johnson, 436 F.

Supp. 2d 91, 95 (D.D.C. 2006) (“The filing of an administrative charge with the EEOC is a 

jurisdictional prerequisite to maintaining a Title VII action in federal district court.”).

Plaintiff does not allege that she filed an administrative claim with the EEOC prior to 

filing this action; therefore, the Court does not have jurisdiction over Plaintiff’s Title VII claims. 

Accordingly, the Court dismisses Claims 1 and 3.

II. Claims 2 and 4—42 U.S.C. § 1981

Plaintiff’s second and fourth claims allege violations of 42 U.S.C. § 1981. There is no 

mention, either in the claims or in any other part of the Complaint, of Plaintiff’s race or ethnicity.

Section 1981 prohibits discrimination on the basis of race or ethnicity. See, e.g., Jones v. 

Bechtel, 788 F.2d 571, 574 (9th Cir. 1986) (explaining that section 1981 provides an action for 

discrimination based on race but not for discrimination based on sex); Saint Francis Coll. v. AlKhazraji, 481 U.S. 604, 613 (1987) (holding that section 1981 does not apply to discrimination 

based on national origin).

Because Plaintiff’s Complaint does not allege any facts from which the Court could 

conclude that she was discriminated against based on her race or ethnicity, the Court dismisses 

Claims 2 and 4.

7 – OPINION & ORDER

Case 3:15-cv-00023-HZ Document 10 Filed 05/29/15 Page 7 of 16
III. Claim 6—Intentional infliction of emotional distress (IIED)

Plaintiff’s sixth claim alleges that Defendants inflicted emotional distress on her by 

discriminating against her based on her gender, harassing her, falsely accusing her of failing to 

show up for work, and interfering with her attempts to seek new employment. Compl. ¶ 74. 

To sustain her IIED claim, Plaintiff must show that Defendants intended to inflict severe 

emotional distress, that Defendants’ acts were the cause of Plaintiff’s severe emotional distress, 

and that Defendants’ acts constituted an extraordinary transgression of the bounds of socially 

tolerable conduct. McGanty v. Staudenraus, 321 Or. 532, 563, 901 P.2d 841, 849 (1995). 

Conduct that is merely “rude, boorish, tyrannical, churlish, and mean” does not support an IIED 

claim. Patton v. J.C. Penney Co., 301 Or. 117, 124, 719 P.2d 854, 858 (1986). “[T]he tort does 

not provide recovery for the kind of temporary annoyance or injured feelings that can result from 

friction and rudeness among people in day-to-day life even when the intentional conduct causing 

plaintiff's distress otherwise qualifies for liability.” Hall v. The May Dep't Stores Co., 292 Or. 

131, 135, 637 P.2d 126, 129 (1981); see also Watte v. Maeyens, 112 Or. App. 234, 237, 828 P.2d 

479, 480–81 (1992) (no claim where employer threw a tantrum, screamed and yelled at his 

employees, accused them of being liars and saboteurs, then fired them all); Madani v. Kendall 

Ford, Inc., 312 Or. 198, 205–06, 818 P.2d 930, 934 (1991) (no claim where employee terminated 

for refusing to pull down pants).

In a 2008 case, the Oregon Court of Appeals explained the following parameters of the 

tort:

A trial court plays a gatekeeper role in evaluating the viability of an IIED claim by 

assessing the allegedly tortious conduct to determine whether it goes beyond the farthest 

reaches of socially tolerable behavior and creates a jury question on liability....

* * *

The classification of conduct as “extreme and outrageous” depends on both the character 

and degree of the conduct. As explained in the Restatement at § 46 comment d:

8 – OPINION & ORDER

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“Liability has been found only where the conduct has been so outrageous in 

character, and so extreme in degree, as to go beyond all possible bounds of 

decency, and to be regarded as atrocious, and utterly intolerable in a civilized 

community.”

Whether conduct is an extraordinary transgression is a fact-specific inquiry, to be 

considered on a case-by-case basis, based on the totality of the circumstances. We 

consider whether the offensiveness of the conduct exceeds any reasonable limit of social 

toleration, which is a judgment of social standards rather than of specific occurrences.

House v. Hicks, 218 Or. App. 348, 358–60, 179 P.3d 730, 737–39 (2008) (internal quotations 

and citations omitted).

The relationship between the parties may have a significant bearing on how to 

characterize the specific conduct at issue. Thomas v. City of Portland, No. CIV.05-1059-ST, 

2007 WL 2286254, at *16 (D. Or. Aug. 3, 2007) (citing McGanty, 321 Or. at 548). A defendant's 

position in relationship to the plaintiff may “impose[ ] on the defendant a greater obligation to 

refrain from subjecting the victim to abuse, fright, or shock than would be true in arm's length 

encounters among strangers.” McGanty, 321 Or. at 547-48. 

Most of the alleged conduct here falls substantially short of what is required to support an 

IIED claim. Defendants’ alleged “harassing comments” such as “You’re asking too many 

questions” or “Just focus on your docs getting out,” do not come close to the extreme and 

atrocious behavior contemplated by an IIED claim. Similarly, while FTFCU management’s 

pressure on Plaintiff to sign a written warning she disagreed with and the decision to move 

Plaintiff’s workspace may have been unfair or insensitive, they are not outrageous. Plaintiff 

presents no facts in support of her allegation that Defendants interfered with her attempts to seek 

new employment. Finally, false accusations and questions regarding Plaintiff’s medical leave 

may have been rude or hostile, but they do not “go beyond all possible bounds of decency[.]” 

9 – OPINION & ORDER

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One of Plaintiff’s allegations could potentially form the basis of an IIED claim. Plaintiff 

alleges that she was subjected to repeated unwelcome physical contact from her manager, James, 

and that James had a “hostile form of communicating” with both Plaintiff and other female 

subordinates. Compl. ¶¶ 17, 21, 22. However, Plaintiff does not provide any details about the 

nature of the contact, form of communication, or frequency of the alleged incidents. 

Cases in Oregon have allowed IIED claims to proceed when they involve “acts of 

psychological and physical intimidation.” Lathrope–Olson, 128 Or. App. at 408, 876 P.2d at 347. 

For example, in Lathrope-Olson, the Oregon Court of Appeals found that a female Native 

American plaintiff stated a claim for IIED when her supervisor called her a squaw, told her that a 

squaw was supposed to walk behind her man, stated that all women were good for was between 

their legs, locked her out of the work van in the rain and snow, and threatened to push her into 

the path of oncoming vehicles. Similarly, the female plaintiff in Mains v. II Morrow, Inc., 128 

Or. App. 625, 877 P.2d 88 (1994), stated an IIED claim because of the defendant's supervisory 

technique of intimidating women. In Mains, the plaintiff endured daily harassing remarks and 

physical assaults by her supervisor, which included touching the plaintiff’s breasts, shoving the 

plaintiff, grabbing the plaintiff’s ankles, blocking the plaintiff’s car, and encouraging other men

to do the same. 128 Or. App. at 635.

In contrast, a decision from this district found that a plaintiff did not state a claim when 

she alleged that she heard sexual comments two or three times a week and was occasionally

“brushed up against.” Johnston v. Pet's Rx, Inc., No. CIV. 06-1566-KI, 2007 WL 2746918, at 

*16 (D. Or. Sept. 19, 2007)

Here, Plaintiff’s complaint lacks sufficient detail for the Court to determine whether 

James’ behavior was extreme and outrageous. Accordingly, Plaintiff’s Claim 6 is dismissed. 

10 – OPINION & ORDER

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IV. Claim 7—Failure to provide adequate rest periods 

Plaintiff’s seventh claim alleges that Defendants violated “the Labor Code” by not 

providing “adequate rest periods.” Plaintiff does not explain what she means by “Labor Code” 

nor does she specify what law she claims Defendant violated. In support of her claim, Plaintiff 

alleges that she “regularly worked in excess of 5 and 10 hours a day without being afforded meal 

[sic] period of at least one half-hour each in which she was relieved of all duties.” Compl. ¶ 80. 

Plaintiff also alleges that she “regularly worked without taking 10 minute breaks.” Id. at ¶ 81.

Oregon law requires that employees who have worked at least six hours are entitled to “a 

meal period of not less than 30 continuous minutes during which the employee is relieved of all 

duties.” OAR 839–020–0050(2)(a). Except as otherwise provided in this rule, if an employee is 

not relieved of all duties for 30 continuous minutes during the meal period, the employer must 

pay the employee for the entire 30-minute meal period. OAR 839-020-0050(2)(b). As to breaks, 

every employer shall provide to each employee, for each segment of four hours or major part 

thereof worked in a work period, a rest period of not less than ten continuous minutes during 

which the employee is relieved of all duties, without deduction from the employee's pay. OAR 

839-020-0050(6)(a). When an employee’s work period is more than eight hours, the employer 

must provide the employee the number of meal periods and rest periods listed in Appendix A of 

Oregon Administrative Rule 839-020-0050. 

Under Oregon law, “there is no private right of action by an employee for either 

unprovided rest breaks or unprovided meal breaks.” Rogers v. RGIS, LLP, 232 Or. App. 433, 

434, 222 P.3d 710, 711 (2009). However, as of July 1, 2010, OAR 839-020-0050 does provide a 

private right of action for unpaid meal breaks. Gessele v. Jack in the Box, Inc., No. 3:10-CV960-ST, 2013 WL 1326563, at *36 (D. Or. Jan. 28, 2013) report and recommendation adopted,

11 – OPINION & ORDER

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No. 3:1 0-CV-00960-ST, 2013 WL 1326538 (D. Or. Apr. 1, 2013). Thus, as the Gessele court 

noted, “the distinction between unprovided and unpaid breaks is significant.” Id.

Even viewing the facts in the light most favorable to Plaintiff, the Court must dismiss this 

claim because Plaintiff appears to only allege that she was not provided rest or meal breaks, not 

that she was unfairly or inadequately paid. Therefore, she has no private right of action. 

V. Claim 8—Interference with Prospective Economic Relations

Plaintiff’s eighth claim, interference with prospective economic relations, alleges that 

Defendants interfered with her ability to perform her job at FTFCU, causing Plaintiff to suffer 

economic loss and emotional distress.

Under Oregon law, a party may recover damages for wrongful interference with a 

contract or prospective economic advantage. Whyte v. Praestantia Associates LLC, No. CIV. 08-

1267-AA, 2009 WL 5173493, at *7 (D. Or. Dec. 18, 2009) (citing Wampler v. Palmerton, 250 

Or. 65, 72–73, 439 P.2d 601 (1968)). Interference with economic relations requires the plaintiff 

to prove six elements:

(1) the existence of a professional or business relationship (which could include, e.g., a 

contract or a prospective economic advantage);

(2) intentional interference with that relationship;

(3) by a third party;

(4) accomplished through improper means or for an improper purpose;

(5) a causal effect between the interference and damage to the economic relationship; and 

(6) damages.

Cron v. Zimmer, 255 Or. App. 114, 125, 296 P.3d 567, 575 (2013) (citing McGanty, 321 Or. at 

532).

Here, Plaintiff alleges that Defendants—not third parties—interfered with Plaintiff’s 

professional relationship with Defendant FTFCU. Thus, Plaintiff fails to satisfy the “third party” 

element of this tort. 

12 – OPINION & ORDER

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To the extent that Plaintiff alleges that “DOES 1 through 20” interfered with her 

relationship with FTFCU, Plaintiff’s claim fails as well. An employee that acts within the scope 

of employment is not a “third party” to a contract between the employer and another for the 

purpose of the tort of intentional interference with economic relations. McGanty, 321 Or. at 543. 

In addition, even if Plaintiff could show that “DOES” did not act within the scope of their 

employment, Plaintiff fails to put forward any facts to satisfy the second, fourth, and fifth 

elements of the tort. Therefore, the Court dismisses Claim 8. 

VI. Claim 10—Intentional violation of the FMLA

Plaintiff alleges “multiple intentional and willful violations of the Family and Medical 

Leave Act of 1993 all of which are not known at this time by Plaintiff and as information 

becomes available to Plaintiff, Plaintiff will amend complaint to reflect.” Compl. ¶ 107. Plaintiff 

also alleges that Defendants harassed Plaintiff regarding her medical needs and falsely accused 

her of failing to show up for work. Plaintiff contends that such conduct was intended to cause 

distress and that the conduct did in fact cause extreme emotional distress. 

The factual allegations Plaintiff makes that relate to FMLA are as follows: (1) in 

September 2014, Plaintiff was very sick and attempted to use family medical leave; (2) James 

and Marilyn repeatedly asked Plaintiff inappropriate questions about her need for medical leave; 

(3) Plaintiff was repeatedly asked to provide information to her direct managers that was 

personal and protected, in order “not to be written up for her absence from work”; and (4) 

Plaintiff arrived at work very ill and Defendants, despite being aware of Plaintiff’s inability to 

work due to illness, accused Plaintiff of not being in the office as expected. Compl. ¶¶ 23, 29. 

The FMLA creates a private right of action in federal court for employees whose 

employer: (1) interferes with, restrains, or denies their exercise or attempt to exercise their 

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FMLA rights, (2) discharges or otherwise discriminates against them for opposing any practice 

made unlawful by the FMLA, or (3) discharges or otherwise discriminates against them for filing 

a charge or instituting a proceeding under the FMLA, for giving information in connection with a 

FMLA inquiry or proceeding, or for testifying in any FMLA inquiry or proceeding. 29 U.S.C. §§ 

2615(a), 2615(b), 2617(a)(2)(A); Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003).

“The FMLA implementing regulations prohibit an employer from interfering with an employee's 

rights under the Act by ‘us[ing] the taking of FMLA leave as a negative factor in employment 

actions.’” Russell v. Mountain Park Health Ctr. Props., LLC, 403 Fed. App’x. 195, 196 (9th Cir.

2010) (quoting 29 C.F.R. § 825.220(c)).

Plaintiff fails to state a claim because she does not identify any way in which Defendants 

violated FMLA. The Complaint does not make clear whether Plaintiff was in fact able to use 

FMLA or how Defendants’ questions and accusations interfered with Plaintiff’s attempt to 

exercise her FMLA rights. In short, her allegation that Defendants violated FMLA is vague, 

conclusory, and unsupported by facts. Accordingly, the Court dismisses Claim 10. 

VII. Claim 11—Intentional violation of FTFCU Internal Definition of Harassment 

Plaintiff alleges that Defendant FTFCU violated its own internal policy against 

harassment and termination of an employee. In Oregon, “[i]n general, an employer may 

discharge an employee at any time, for any reason, unless doing so violates a contractual, 

statutory, or constitutional requirement. Williams v. Lane Cnty., No. CIV. 04-6015-TC, 2004 

WL 2332026, at *7 (D. Or. Oct. 15, 2004) (citing Banaitis v. Mitsubishi Bank, 129 Or. App. 371, 

376, 879 P.2d 1288 (1994)). However, 

There are exceptions to the general rule. A cause of action will lie against an employer 

who discharges an employee for performing a public duty, or fulfilling a societal 

obligation such as serving on a jury, Nees v. Hocks, 272 Or. 210, 219, 536 P.2d 512 

(1975), or refusing to commit a potentially tortious act of defamation. Delaney v. Taco 

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Time Int'l., 297 Or. 10, 17, 681 P. 2d 114 (1984). An employer also may be held liable 

for discharging an employee for pursuing private statutory rights that are directly related 

to the employment, such as resisting sexual harassment by a supervisor, Holien v. Sears, 

Roebuck and Co., 298 Or. 76, 90-97, 689 P.2d 1292 (1984), or filing a claim for workers' 

compensation benefits. Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (1978).

Banaitis v. Mitsubishi Bank, Ltd., 129 Or. App. 371, 376, 879 P.2d 1288, 1293 (1994). Plaintiff 

fails to identify, and this Court does not find, an exception to the general rule when an employer 

discharges an employee in violation of an employer’s internal policies. Therefore, the Court 

dismisses Claim 11. 

VIII. Leave to Amend

When the Court dismisses a complaint, it must decide whether to grant leave to amend. 

See 28 U.S.C. § 1653. The Ninth Circuit has repeatedly held that dismissal without leave to 

amend is improper, even if no request to amend the pleading was made, unless it is clear that the 

defective pleading cannot possibly be cured by the allegation of additional facts. Snell v. 

Cleveland, Inc., 316 F.3d 822, 828 n. 6 (9th Cir. 2002) (citing Lee v. City of Los Angeles, 250 

F.3d 668, 692 (9th Cir. 2001)); Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000). Thus, 

the Court grants Plaintiff leave to amend to allege additional facts in support of the dismissed 

claims.

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CONCLUSION

The Court grants Defendants’ Partial Motion to Dismiss [9] Claims 1-4, 6-8, and 10-11. 

The Court grants Plaintiff leave to amend. If Plaintiff chooses to amend her Complaint, she must 

do so within 14 days of the date below.

IT IS SO ORDERED.

Dated this day of ________________, 2015.

 

MARCO A. HERNÁNDEZ

United States District Judge

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