UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Melissa Fireside
v. Civil No. 17-cv-374-LM Opinion No. 2018 DNH 021 College for America, Southern New Hampshire University
O R D E R
Plaintiff Melissa Fireside brings this suit against
defendant Southern New Hampshire University (“SNHU”), asserting
claims arising out of SNHU’s decision not to hire her for two
full-time positions.1 SNHU moves to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. See doc. no.
49. Fireside objects. For the reasons that follow, the motion
to dismiss is granted in part and denied in part.
STANDARD OF REVIEW
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff’s favor, and “determine whether the
factual allegations in the plaintiff’s complaint set forth a
1This suit was originally filed in state court in Oregon and was subsequently removed by SNHU to the federal district court for the District of Oregon. The case was later transferred to this court. plausible claim upon which relief may be granted.” Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
(internal quotation marks omitted). A claim is facially
plausible “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).
BACKGROUND
The following facts are taken from Fireside’s complaint. In
September 2015, SNHU hired Fireside to work remotely from her
home in Oregon as a part-time faculty reviewer in its College
for America division. A faculty reviewer evaluates student
projects for competency.
On December 19, 2015, Fireside applied for a full-time team
lead position within the Psychology Department of SNHU, for
which she was qualified. On January 14, 2016, Fireside had a
second-round telephone interview with Julie-anne Edwards, the
Director of Operations, during which they discussed the position
and start date. During this interview, Fireside informed Edwards
that she was pregnant. Fireside also informed Edwards of her
expected delivery date. In response, Edwards asked how much
time Fireside planned to take for maternity leave, to which
Fireside replied one month.
2 Edwards stated that SNHU had made exceptions to start dates
in the past. Edwards informed Fireside, however, that she would
not select her for the position because her “due date interfered
with the position start date and training period.” Doc no. 1-1
at ¶ 10. Edwards also told Fireside that she would inform the
hiring committee that Fireside was unable “to perform in the
position.” Id. at ¶ 12. Edwards called Fireside again on
January 20, 2016, to notify her that SNHU did not select her for
the job. In February 2016, SNHU hired someone who was not
pregnant for the team lead position.
On or about April 25, 2016, Fireside applied for a full-
time faculty position in SNHU’s Psychology Department. While
her application was pending, Fireside filed a Charge of Unlawful
Discrimination against SNHU on or about June 3 with the U.S.
Equal Employment Opportunities Commission (“EEOC”), which she
also filed with the Oregon Bureau of Labor and Industries
(“BOLI”) and the New Hampshire Commission for Human Rights
(“NHCHR”) at the same time.
SNHU did not interview Fireside for the faculty position.
On August 1, 2016, Fireside received a letter from SNHU’s Human
Resources department denying her the job. Fireside alleges that
SNHU was aware of her discrimination complaint when it rejected
her for the second position as a full-time faculty member. On
August 19, Fireside filed an amended complaint with the EEOC,
3 BOLI, and NHCHR, which included additional allegations of
discrimination.
DISCUSSION
Fireside alleges five claims, each under Oregon state law:
pregnancy discrimination under Oregon Revised Statute (“ORS”)
659A.030(1)(a); pregnancy discrimination under ORS
659A.030(1)(b); retaliation for filing a discrimination
complaint under ORS 659A.030(1)(f); aiding and abetting
pregnancy discrimination under ORS 659A.030(1)(g); and
retaliation for bringing a civil proceeding under ORS 659A.230.
SNHU moves to dismiss all of the claims, and Fireside objects.2
I. Count I – Refusal to Hire/Sex Discrimination
In the first claim for relief, Fireside contends that SNHU
discriminated against her because of her sex, in violation of
ORS 659A.030(1)(a), when it rejected her for the team lead and
faculty positons. The statute makes it an unlawful employment
practice “[f]or an employer, because of an individual’s . . .
2 In her objection, Fireside argues that the court should not consider the motion to dismiss because it was filed simultaneously with the answer and was thus untimely. Fireside is incorrect. See 5C Charles Alan Wright & Arthur Miller, Federal Practice & Procedure § 1361 (3d ed. 2017)(stating that where the motion to dismiss is filed simultaneously with the answer, “the district court will view the motion as having preceded the answer and thus as having been interposed in timely fashion”).
4 sex . . . to refuse to hire or employ the individual.” ORS
659A.030(1)(a). Under the statute, “sex” includes pregnancy,
childbirth and related medical conditions or occurrences. ORS
659A.029.
“Because ORS 659A.030 is patterned after Title VII, both
Oregon and federal courts have considered federal Title VII [ ]
case law instructive when construing state law.” Jernigan v.
Alderwoods Grp., Inc., 489 F. Supp. 2d 1180, 1192 n.6 (D. Or.
2007) (internal citations omitted). Relying on this principle,
SNHU argues that Fireside cannot meet the familiar McDonnell-
Douglas framework that applies to Title VII cases, see McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), which requires a
plaintiff to establish a prima facie case of discrimination. To
state a prima facie case of discrimination, a plaintiff must
allege facts showing that (1) she was a member of a protected
class; (2) she was qualified for the position; (3) she was
rejected for the position; and (4) the defendant continued to
seek applicants who had similar qualifications to the plaintiff.
Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002) (citing
McDonnell Douglas, 411 U.S. at 793).
SNHU argues that Count I must be dismissed because Fireside
fails to allege sufficient facts about her own and the other
candidates’ qualifications to satisfy the elements of a prima
facie case of sex discrimination. Further, as to the faculty
5 position, SNHU notes that Fireside does not allege any details
about the individual who was ultimately hired.
SNHU overstates Fireside’s burden at this stage of the
litigation. To survive a motion to dismiss, a complaint
alleging Title VII discrimination “need not contain specific
facts establishing a prima facie case of discrimination.”
Weaver-Ferguson v. Boston Pub. Sch., No. CV 15-13101-FDS, 2016
WL 1626833, at *3 (D. Mass. Apr. 22, 2016) (internal quotation
marks, citation, and emphasis omitted); see also Garayalde-Rijos
v. Municipality of Carolina, 747 F.3d 15, 24 (1st Cir. 2014)
(“[P]laintiffs need not plead facts in the complaint that
establish a prima facie case under Title VII nor must they
‘allege every fact necessary to win at trial.’”) (quoting
Rodríguez–Vives v. P.R. Firefighters Corps of P.R., 743 F.3d
278, 283 (1st Cir. 2014)). Instead, “[t]he plausibility
standard governs on a motion to dismiss. So, no single
allegation need establish some necessary element of the cause of
action, provided that, in sum, the allegations of the complaint
make the claim as a whole at least plausible.” Garayalde-Rijos,
747 F.3d at 24 (internal quotation marks, citation, and
alterations omitted). Although a plaintiff need not establish a
prima facie case of discrimination at the pleading stage,
“elements of a prima facie case may be used as a prism to shed
6 light upon the plausibility of the claim.” Rodriguez-Reyes v.
Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013).
Here, Fireside alleges that Edwards made statements—when
interviewing her for the team lead position—that showed Edwards
viewed Fireside’s pregnancy in a negative light. Fireside
alleges that Edwards told her she would not be selected because
her “due date interfered with the start date and training
period.” Doc. no. 1-1 at ¶ 10. In the same interview, Edwards
conceded that SNHU had made exceptions to start times in the
past. Edwards concluded the interview by telling Fireside that
she would relay to the hiring committee Fireside’s “inability to
perform in the position.” Id. at ¶ 12. Fireside further
alleges that the position remained open even after she was
rejected, and that SNHU hired someone who was not pregnant in
February 2016. Construed favorably to Fireside, the facts
plausibly allege that Fireside was qualified for the team lead
position but SNHU rejected her because of her pregnancy.
With respect to the faculty position, SNHU is correct that
Fireside provides less detail. However, Fireside applied for
the faculty position a mere three months after SNHU rejected her
for the team lead position. Fireside also filed a complaint
against SNHU (with the EEOC and its state analogs in both Oregon
and New Hampshire) while her application for the faculty
position was pending. In light of Fireside’s allegations
7 concerning Edwards’s statements during the earlier interview,
the court finds the allegations concerning the faculty position
sufficiently plausible to survive a motion to dismiss.
Dismissal of that portion of Count I is therefore inappropriate
at this stage of the litigation.
Thus, with respect to Count I, SNHU’s motion to dismiss is
denied.
II. Count II – Discrimination in Compensation/Terms
In Count II, Fireside contends that SNHU discriminated
against her on the basis of her sex, in violation of ORS
659A.030(1)(b), by denying her a full-time position and thereby
denying her a raise. This provision makes it an unlawful
employment practice “[f]or an employer, because of an
individual’s . . . sex . . . to discriminate against the
individual in compensation or in terms, conditions or privileges
of employment.” ORS 659A.030(1)(b).
SNHU argues that this claim fails for the same reasons as
Count I, namely, that Fireside did not allege sufficient facts
about her qualifications or those of the hired candidates. The
court declines to dismiss Count II on this basis for the same
reasons discussed above.
SNHU also argues that if Fireside bases Count II on SNHU’s
rejection of her for the team lead and faculty positions, the
8 claim is duplicative of her ORS 659A.030(1)(a) claim and thus
should be dismissed. At this early stage, the court declines to
decide if Count II is duplicative. See Silva v. Metro. Life
Ins. Co., 762 F.3d 711, 727 (8th Cir. 2014) (finding that a
court is better equipped at summary judgement “to assess the
likelihood for duplicate recovery, analyze the overlap between
claims, and determine whether one claim alone will provide the
plaintiff with adequate relief” (internal citations omitted)).
Accordingly, with respect to Count II, SNHU’s motion to
dismiss is denied.
III. Count III – Retaliation
In the third claim for relief, Fireside alleges that her
rejection from the faculty position was in retaliation for
filing an administrative complaint with the EEOC, BOLI, and
NHCHR. Fireside brings this claim under ORS 659A.030(1)(f),
which makes it an unlawful employment practice “[f]or any person
to discharge, expel, or otherwise discriminate against any other
person because that other person has opposed any unlawful
practice, or because that other person has filed a complaint,
testified or assisted in any proceeding under this chapter or
has attempted to do so.” ORS 659A.030(1)(f).
SNHU moves to dismiss Count III on the grounds that
Fireside fails to plead sufficient facts to substantiate a
9 causal link between her administrative complaint and her
rejection. Fireside asserts that the close temporal proximity
of her filing of the complaint and SNHU’s rejection of her
application is sufficient to support her claim at this stage.
To state a claim of retaliation under ORS 659A.030,
Fireside must allege facts showing (1) that she engaged in
protected activity; (2) she was subjected to an adverse
employment action by her employer; and (3) that there is a
causal link between the protected activity and the adverse
action. Kim v. Prudential Fin., Inc., No. 3:15-cv-2029-PA, 2016
WL 2595477, at *6 (D. Or. May 4, 2016). Plaintiff may satisfy
the causation element through circumstantial evidence, including
close temporal proximity and the employer’s knowledge of the
protected activity. Id. (citing Yartzoff v. Thomas, 809 F.2d
1371, 1376 (9th Cir. 1987)); see also Villiarmo v. Aloha Island
Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (“[I]n some
cases, causation can be inferred from timing alone where an
adverse employment action follows on the heels of protected
activity.”).
Here, less than two months passed between Fireside’s
administrative complaint and SNHU’s rejection of her application
for the faculty position. Fireside filed her first
administrative complaint on June 3, 2016 and received a denial
letter from SNHU 59 days later on August 1. Such close temporal
10 proximity, in light of Fireside’s allegations that SNHU was
aware of her complaint with the EEOC, BOLI, and NHCHR, is
sufficient to show a causal link at the motion to dismiss stage.
See, e.g., Gascard v. Franklin Pierce Univ., 14-cv-220-JL, 2015
WL 1097485, at *5 (D.N.H. Mar. 11, 2015) (finding that alleged
temporal proximity of four months between the protected conduct
and adverse employment action was sufficient to plead
causation); Gordon v. Hughes, 2:13-cv-01072-JAD-GWF, 2015 WL
1549141, at *2 (D. Nev. Apr. 7, 2015) (holding that three months
between the complaint and adverse employment action was
sufficient to allege causation on timing alone to survive a
12(b)(6) motion); see also Miller v. Fairchild Indus., Inc., 885
F.2d 498, 505 (9th Cir. 1999).
Therefore, the court declines to dismiss Count III on that
basis.3
3 There may be a separate question as to whether Fireside's complaints to the EEOC and NHCHR can provide grounds for a retaliation claim under the statute. See ORS 659A.030(1)(f); OAR 839-005-0125(2)(a)(B) (interpreting statute to cover a person who files a charge, testifies, or assists "in an investigation, proceeding, or lawsuit under ORS Chapter 659A" (emphasis added)). Because the parties have not addressed the issue, and given that the claim would still survive based on Fireside's complaint to the BOLI, the court need not resolve the question at this juncture.
11 IV. Count IV – Aiding and Abetting
In the fourth claim for relief, Fireside alleges that
SNHU’s “divisions, department, Human Resources and agents were
aware of plaintiff’s applications for employment and her pending
pregnancy discrimination claims against SNHU and denied her
employment as a Faculty member with that knowledge.” Doc. no.
1-1 at ¶ 40. Fireside brings this claim under ORS
659A.030(1)(g), which makes it an unlawful employment practice
“for any person, whether an employer or an employee, to aid,
abet, incite, compel or coerce the doing of any acts forbidden
under this chapter.”
SNHU argues that Count IV does not state a claim for relief
because Fireside has not alleged any facts regarding the alleged
abettors’ names, identities, or specific actions. Fireside
counters that she did name one individual, Julie-anne Edwards,
and may secure other names through discovery.
Although the complaint lacks factual allegations concerning
the alleged abettors, Count IV fails for a much simpler reason:
Fireside named only one defendant in this action. Although
Edwards appears as a key player in the complaint, she is not a
defendant in this case and she is not referenced in the
allegations in Count IV. Fireside cannot sustain a claim that
SNHU aided and abetted itself. See, e.g., Cain v. Atelier
12 Esthetique Inst. of Esthetics, Inc., No. 13-CV-7834(GBD)(JCF),
2015 WL 1499810, at *2 n.6 (S.D.N.Y. Mar. 27, 2015) (granting
summary judgment for plaintiff’s aiding and abetting
discrimination claim because “there is only one defendant in
this case, and a defendant cannot aid and abet its own allegedly
discriminatory practices”); Maizner v. Haw., Dep’t of Educ., 405
F. Supp. 2d 1225, 1239 (D. Haw. 2005) (dismissing plaintiff’s
claim that defendant aided, incited, compelled, or coerced
himself into discriminating because “[t]here must be at least
two persons (someone who incites, compels, or coerces, and some
other person who is incited, compelled, or coerced)”).
Accordingly, with respect to Count IV, SNHU’s motion to
dismiss is granted.
V. Count V – Discrimination and Retaliation for Bringing a Civil Proceeding
In the fifth claim for relief, Fireside alleges that SNHU
retaliated against her for filing an administrative complaint of
discrimination in violation of ORS 659A.230. The statute states
that:
[i]t is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee . . . has in good faith brought a civil proceeding against an employer . . . .
ORS 659A.230(1) (emphasis added).
13 SNHU argues that this statute does not protect an employee,
such as Fireside, from retaliation where the employee filed a
complaint with an administrative agency. Indeed, the Oregon
Court of Appeals has narrowly interpreted the statute to apply
only to retaliation after employees filed civil or criminal
actions, not administrative complaints. See Huber v. Or. Dep’t
of Educ., 230 P.3d 937, 942 (Or. Ct. App. 2010) (holding that
plaintiff’s complaint to the Department of Health & Human
Services was an administrative matter—not a criminal or civil
action—and therefore was not protected by the statute).
Fireside contests this interpretation and points to an Oregon
regulation that expressly states that the statute protects an
employee’s filing of a complaint with administrative agencies as
well as courts. See OAR 839-010-0140(1)(a).
Recently, the Oregon Court of Appeals noted, but did not
resolve, this “discrepancy” between Oregon case law, see Huber,
230 P.3d at 942, and the administrative rule, see OAR 839-010-
0140. Folz v. State, 404 P.3d 1036, 1041 (Or. Ct. App. 2017).
In light of this unsettled discrepancy, which neither party has
adequately addressed, the court finds that SNHU has not shown
that it is entitled to dismissal of Count V at this early stage.4
4 SNHU also contends that Count V fails because it is duplicative of the claim in Count III, which SNHU argues fails to state a claim. As the court found above, however, Fireside
14 CONCLUSION
For the foregoing reasons, defendant SHNU’s motion to
dismiss (doc. no. 49) is granted in part and denied in part. It
is granted as to Count IV and is otherwise denied.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
February 27, 2018
cc: Counsel of Record
has sufficiently pleaded Count III. Therefore, this argument is without merit.