Zahnga E. Peabody v. Thermo Fischer Scientific Inc.

Summary

This Findings and Recommendation addresses defendant Thermo Fischer Scientific Inc.'s Rule 12(b)(6) motion to dismiss claims brought by pro se plaintiff Zahnga E. Peabody. The magistrate judge recommends dismissing the Title VII retaliation claim without leave to amend, denying dismissal of the Title VII race-discrimination and ADEA claims on timeliness grounds, and dismissing those discrimination claims with leave to amend on the merits. The document also addresses a state-law retaliation claim and a common-law wrongful-discharge claim.

Holdings

1. Reporting workplace safety violations is not protected activity under Title VII because Title VII does not regulate workplace safety; the Title VII retaliation claim therefore failed to state a plausible claim.
2. The Title VII race and national-origin claim and the ADEA claim could not be dismissed as untimely at the pleading stage because the record did not establish with certainty whether the EEOC reopened its investigation or issued a later right-to-sue notice.
3. The complaint did not plausibly allege that similarly situated employees outside Peabody's protected class were treated more favorably, so the race and national-origin discrimination claims should be dismissed with leave to amend.
4. The complaint did not plausibly allege that Peabody was treated less favorably than younger coworkers or otherwise establish circumstances supporting an inference of age discrimination; dismissal of the ADEA claim with leave to amend was recommended.
5. The common-law wrongful-discharge claim was precluded because ORS 659A.199 provided an adequate statutory remedy for the same alleged whistleblower retaliation.
6. The court would not construe the amended complaint as asserting a USERRA claim because a complaint cannot be amended through opposition briefing, but Peabody could include such a claim in an amended complaint.

Questions Presented

1. Whether reporting workplace safety violations stated a protected-activity retaliation claim under Title VII.
2. Whether the Title VII race and national-origin discrimination claim and the ADEA age-discrimination claim were untimely based on the EEOC materials.
3. Whether the complaint plausibly alleged disparate-treatment discrimination under Title VII and Oregon law.
4. Whether the complaint plausibly alleged age discrimination under the ADEA.
5. Whether Oregon common-law wrongful discharge was available when an adequate statutory remedy existed under ORS 659A.199.
6. Whether the court should construe allegations raised for the first time in opposition briefing as asserting a USERRA claim.

Disposition

other