IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RAUL GARCIA, Case No. 3:16-cv-00390-SB

Plaintiff, FINDINGS AND

RECOMMENDATION

v.

UNION PACIFIC RAILROAD COMPANY, a

Delaware corporation, and JERRALD MOORE,

Defendants.

 

BECKERMAN, Magistrate Judge.

Raul Garcia (“Plaintiff”) brings this action against Union Pacific Railroad Company(“Union

Pacific”) and Jerrald Moore (collectively, “Defendants”), his former employer and supervisor,

respectively, alleging claims for perceived disability discrimination under Oregon Revised Statutes

(“ORS”) § 659A.112, failure to accommodate a perceived disability under ORS § 659A.112, and

national origin discrimination under ORS § 659A.030. Defendants now move to dismiss defendant

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Moore from this action, and to dismiss Plaintiff’s claims for failure to accommodate a perceived

disability, and for national origin discrimination. See FED. R. CIV. P. 12(b)(6). The Court has

jurisdiction over Plaintiff’s employment claims pursuant to 28 U.S.C. § 1332(a). For the reasons that

follow, the Court recommends that the district judge grant Defendants’ motion to dismiss (ECF No.

7).1

LEGAL STANDARDS

The Ninth Circuit has “held that dismissal for failure to state a claim is ‘proper only where

there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable

legal theory.’” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010)

(quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). In evaluating the sufficiency of a

complaint’s factual allegations, courts must “accept as true all well-pleaded allegations of material

fact, and construe them in the light most favorable to the non-moving party.” Daniels-Hall v. Nat’l

Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (citation omitted). Courts “are not, however, required

to accept as true allegations that contradict exhibits attached to the complaint or matters properly

subject to judicial notice, or allegations that are merely conclusory, unwarranted deductions of fact,

or unreasonable inferences.” Id. Nor are courts required to accept as true allegations that simply

recite the elements of a cause of action. Starr v. Baca, 625 F.3d 1202, 1216 (9th Cir. 2011).

Ultimately, surviving a motion to dismiss requires that the complaint “contain sufficient allegations

of underlying facts to give fair notice and to enable the opposing party to defend itself effectively,”

1 The parties do not dispute whether the Court has subject matter jurisdiction, or whether

Defendants timely removed Plaintiff’s first amended complaint from state court on March 2, 2016.

See generally 28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of any defect other

than lack of subject matter jurisdiction must be made within [thirty] days after the filing of the notice

of removal.”).

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and “the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such

that it is not unfair to require the opposing party to be subjected to the expense of discovery and

continued litigation.” Id.

DISCUSSION

A. Defendant Moore

Defendants move to dismiss Moore from this lawsuit on the grounds that: (1) Plaintiff has

failed to plead a plausible claim for relief against Moore, and (2) ORS §§ 659A.030 and 659A.112

do not provide causes of action against individual supervisors, as opposed to employers. See OR.

REV. STAT. § 659A.001(4)(a) (“Employer means any person who in this state, 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.”); see also Ballinger v. Klamath

Pac. Corp., 135 Or. App. 438, 452 (Or. Ct. App. 1995) (finding that, under ORS § 659A, “[a]lthough

[defendants] were authorized to supervise plaintiffs . . . , the authority to ‘control’ these plaintiffs

was not ‘reserv[ed]’ to them”). In his response brief, Plaintiff concedes that Moore should be

dismissed from this lawsuit. (See Pl.’s Resp. 2.) Accordingly, the Court recommends that the district

judge grant Defendants’ motion to dismiss defendant Moore.

B. Second and Fourth Claims for Relief—Failure to Accommodate a Perceived Disability 

Plaintiff alleges that Union Pacific discriminated against him on the basis of a perceived

disability, that Union Pacific failed to accommodate that perceived disability, and that Union Pacific

failed to accommodate the perceived disability because of Plaintiff’s national origin, all in violation

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of ORS § 659A.112.2

(First Am. Compl. ¶ 22.) Importantly, Plaintiff asserts that Union Pacific

believed that “Plaintiff might suffer from a disease or illness that might cause Plaintiff to suddenly

lose consciousness while on the job in the future” (First Am. Compl. ¶ 3) (emphasis added), but

Plaintiff asserts that he is not disabled, and that he “suffers from no disease or illness that has or will

cause him to suddenly lose consciousness, nor is Plaintiff substantially limited in any major life

activity as a result of any physical or mental impairment.” (First Am. Compl. ¶ 6.) 

Plaintiff’s second and fourth claims for relief are premised on Union Pacific’s failure to

accommodate Plaintiff’s perceived disability. However, an “employer is under no obligation to

provide reasonable accommodations to an employee who is not actually disabled, but is merely

regarded by his employer as [being] disabled.” Pickens v. Shinseki, No. 09-704-KI, 2011 WL

2011478, at *2 (D. Or. May 23, 2011) (citing Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1232

(9th Cir. 2003) (addressing the Americans with Disabilities Act of 1990, or “ADA”)); see also

Ambrose v. J.B. Hunt Transp., Inc., No. 12–1740–HU, 2014 WL 585376, at *12 (D. Or. Feb. 13,

2014) (explaining that ORS § 659A.112 is construed in a manner consistent with the ADA).

Accordingly, the district judge should dismiss Plaintiff’s second and fourth claims for relief.

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2 ORS § 659A.112 states that an employer may not “bar or discharge from employment. . . on

the basis of disability.” OR. REV. STAT. § 659A.112(1). ORS § 659A.112 further provides that “an

employer violates subsection (1) if the employer . . . does not make reasonable accommodation to

the known physical or mental limitations of a qualified individual with a disability[.]” OR. REV.

STAT. § 659A.112(2)(e).

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C. Third Claim for Relief—National Origin Discrimination

In his third claim for relief, Plaintiff alleges that Union Pacific discriminated against him on

the basis of his Hispanic national origin, in violation of ORS § 659A.030(1)(a).

3 Plaintiff has not

pled any factsin support of his national origin discrimination claim. (See First Am. Compl. ¶ 3, “On

or about August, 2014, Defendant terminated Plaintiff from his employment because it was

dissatisfied with Plaintiff’s work and due to his ethnicity.”); (First Am. Compl. ¶ 17, “Defendant

Union Pacific’s termination of Plaintiff’s employment was due [to] Defendants’ bias against Plaintiff

due to his national origin.”) Plaintiff’s allegations are merely conclusory, and need not be accepted

as true. See Daniels-Hall, 629 F.3d at 998; see also Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009)

(“‘[D]etailed factual allegations’ are not required, but the Rule does call for sufficient factual matter,

accepted as true, ‘to state a claim that is plausible on its face.’”) (citation omitted); Briah v. Doe,

3:15-cv-0403-AC, 2015 WL 9948210, at *2 (D. Or. Dec. 22, 2015) (granting defendants’ motion

to dismiss national origin discrimination claim, because the plaintiff’s “claim cannot proceed without

factual allegations”). As a result, the district judge should also dismiss Plaintiff’s third claim for

relief.

D. Leave to Amend

The question remains whether the court should grant Plaintiff leave to amend his second,

third, and fourth claims for relief. A “district court may deny a plaintiff leave to amend if it

determines that allegation of other facts consistent with the challenged pleading could not possibly

cure the deficiency.” Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (citation

3 ORS § 659A.030 states that an employer may not “bar or discharge [an] individual from

employment” on the basis of the individual’s national origin. OR. REV. STAT. § 659A.030(1)(a).

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and quotation marks omitted). Importantly, a plaintiff must possess a good faith factual basis for

alleging the facts necessary to cure the deficiency, in order to comply with Rule 11. See Johnson v.

Hologic, Inc., No. 14-794, 2014 WL 2581421, at *5 n.6 (E.D. Cal. June 9, 2014) (“Plaintiff is

cautioned that if she chooses to file an amended complaint, she must have a good faith factual basis

for the allegations asserted in that pleading.”).

The Court recommends that the district judge deny Plaintiff leave to amend his claims for

failure to accommodate a perceived disability (claims two and four), because Plaintiff acknowledges

he does not suffer from a disability within the meaning of ORS § 659A.104(1)(a), which necessarily

defeats any claim for failure to accommodate a perceived disability.

4 However, the Court

recommends that the district judge grant Plaintiff leave to amend his third claim for relief (national

origin discrimination), because the Court is unable to conclude that Plaintiff’s pleading could not

possibly be cured by amendment. See Telesaurus VPC, LLC, 623 F.3d at 1003.

CONCLUSION

For the reasons stated, the Court recommends that the district court grant Defendants’ motion

to dismiss (ECF No. 7).

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4 At oral argument, Plaintiff sought leave to amend his failure to accommodate claims only

in the event that Union Pacific takes the position later in this case that Plaintiff is, in fact, disabled.

In that event, Plaintiff anticipates amending his complaint to allege that Union Pacific failed to

accommodate that disability (despite Plaintiff’s current assertion that he is not disabled). While it

is difficult to conceive that Plaintiff could plausibly allege that he suffers from an actual disability

after consistently asserting that he is not disabled, the dismissal of Plaintiff’s claims for failure to

accommodate a perceived disabilitywithout leave to amend should not be construed to bar anyfuture

claim for failure to accommodate an actual disability.

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SCHEDULING ORDER

The Findings and Recommendation will be referred to a district judge. Objections, if any, are

due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed,

the Findings and Recommendation will go under advisement on that date. If objections are filed, a 

response is due fourteen (14) days after being served with a copy of the objections. When the

response is due or filed, whichever date is earlier, the Findings and Recommendation will go under

advisement.

Dated this 24th day of June, 2016.

 

STACIE F. BECKERMAN

United States Magistrate Judge

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