Tsur v. Intel Corp.

• Decision Date: 08 October 2021
• Docket Number: 3:21-cv-655-SI
• Parties: RON TSUR, Plaintiff, v. INTEL CORPORATION, Defendant.
• Court: U.S. District Court — District of Oregon

RON TSUR, Plaintiff,
v.
INTEL CORPORATION, Defendant.

No. 3:21-cv-655-SI

United States District Court, D. Oregon

October 8, 2021

SHANTI S. LEWALLEN, LEWALLEN LAW LLC, OF ATTORNEYS FOR PLAINTIFF RON TSUR.

HELEN M. MCFARLAND, SEYFARTH SHAW LLP, CHRISTOPHER DEGROFF, SEYFARTH SHAW LLP, AND SHARDE SKAHAN, SEYFARTH SHAW LLP, OF ATTORNEYS FOR DEFENDANT INTEL CORPORATION.

OPINION AND ORDER

Michael H. Simon, District Judge.

Plaintiff Ron Tsur (Tsur) brings this lawsuit against his former employer, Defendant Intel Corporaton (Intel). Tsur alleges that Intel unlawfully discriminated and retaliated against him because of his age and Israeli national origin. Tsur began working at Intel as a full-time employee in 2011 at the age of 58. His first supervisor, Bruce Jones (Jones), allegedly made a series of demeaning comments to Tsur related to his age and Israeli national origin. Tsur reported Jones's age-related comments to the vice president of his department and believes that Jones

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learned of that report and then retaliated against Tsur with a series of poor performance reviews, culminating in Intel giving Tsur a choice between leaving Intel or accepting a “Corrective Action Plan.” Tsur chose to take the Corrective Action Plan, transferred departments, and received “Successful” performance reviews from new supervisors. In June 2015, however, Intel designated Tsur to be among a group of 1, 155 employees selected for layoff, in part because of the poor performance reviews that Tsur had received from Jones.

In this lawsuit, Tsur asserts federal claims under the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act (Title VII) and state law claims under Oregon's anti-discrimination statutes.^[1] Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, Intel moves to dismiss several of Tsur's claims and portions of his other claims. Among other things, Intel argues that the applicable statutes of limitation bar portions of Tsur's claims and also contends Tsur has failed to state a prima facie case of discrimination. Finally, Intel moves to strike many of Tsur's allegations under Rule 12(f).

STANDARDS

A. Motion to Dismiss

A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, a court must accept as true all well-pleaded material facts alleged in a complaint and construe them in the light most favorable to the non-moving party. See Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629

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F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). A court must draw all reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon Office Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). A court need not, however, credit a plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “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.” Starr, 652 F.3d at 1216. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).

B. Motion to Strike

Under Rule 12(f) of the Federal Rules of Procedure, a court may strike from any pleading any matter that is “immaterial” or “impertinent, ” among other things. Something is “immaterial” if it “has no essential or important relationship to the claim for relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994) (quoting C. Wright, A. Miller, et al., 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed. 2013)). Something is “impertinent” if it does “not pertain, and [is] not necessary,

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to the issues in question.” Id. Such material is legally insufficient “under any set of facts the defendant might allege.” Polk v. Legal Recovery Law Offices, 291 F.R.D. 485, 489 (S.D. Cal. 2013) (citation and quotation marks omitted).

The purpose of a Rule 12(f) motion is to avoid spending time and money litigating spurious issues. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010); see also Fantasy, Inc., 984 F.2d at 1527. The disposition of a motion to strike is within the discretion of the district court. See Fed. Sav. & Loan Ins. Corp. v. Gemini Mgmt., 921 F.2d 241, 244 (9th Cir. 1990). “Motions to strike are disfavored and infrequently granted.” Legal Aid Servs. of Or. v. Legal Servs. Corp., 561 F.Supp.2d 1187, 1189 (D. Or. 2008); see also Capella Photonics, Inc. v. Cisco Sys., Inc., 77 F.Supp.3d 850, 858 (N.D. Cal. 2014) (“Motions to strike are regarded with disfavor because of the limited importance of pleadings in federal practice and because they are often used solely to delay proceedings.” (quotation marks and alterations omitted)).

C. Statutes of Limitation

Before suing for discrimination under the ADEA or Title VII, a plaintiff must first have filed a charge with the Equal Employment Opportunity Commission (EEOC) within 300 days after the alleged unlawful conduct. 29 U.S.C. § 626(d)(1); 42 U.S.C. § 2000e-5(e)(1). Courts treat this time-to-file requirement as a statute of limitations. Sosa v. Hiraoka, 920 F.2d 1451, 1455 (9th Cir. 1990) (Title VII); Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 674-75 (9th Cir. 1988) (ADEA).

Until September 2019, Oregon's employment discrimination statutes similarly required that a plaintiff file a charge with the Oregon Bureau of Labor and Industries (BOLI) within one year after the alleged unlawful conduct before that person may bring a civil action under these laws. Or. Rev. Stat. § 659A.875 (amended 2019). The Oregon Legislature, however, extended

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that limitations period to five years for age and national origin discrimination claims, among other claims. Or. Rev. Stat. § 659A.875 (2019); Or. Laws 2019, ch. 343, § 6. The 2019 amendment did not alter the one-year limitations period for employment retaliation claims under Oregon Revised Statutes § 659A.199. Because Tsur filed his BOLI charge on January 12, 2016, before the new time-to-file requirements went into effect, Oregon's one-year statute of limitations applies in this case.

As noted, Tsur filed his BOLI charge on January 12, 2016. The date that Tsur filed his BOLI charge also serves as date he filed his EEOC charge. See Stiefel v. Bechtel Corp., 624 F.3d 1240, 1245 (9th Cir. 2010) (stating that a workshare agreement between the EEOC and an equivalent state agency disposes of a plaintiff's need to file a separate charge with the EEOC in addition to a charge with the state agency); Pearson v. Reynolds Sch. Dist. No. 7, 998 F.Supp.2d 1004, 1019 (D. Or. 2014) (stating that BOLI and the EEOC have a workshare agreement). Thus, the limitations period begins on March 18, 2015 for Tsur's ADEA and Title VII claims (300 days before the filing of his BOLI charge) and on January 12, 2015 (one year before the filing of his BOLI charge) for his state law claims.

D. Continuing Violations Doctrine

The “continuing violations” doctrine allows a civil rights plaintiff to bring a claim based on events that occurred outside the applicable statute of limitations period if the plaintiff can show that the defendant engaged in a continuing violation that at least in part fell within the limitations period. See Cherosky v. Henderson, 330 F.3d 1243, 1246 n.3 (9th Cir. 2003) (noting that the continuing violations doctrine applies to Title VII and “other civil rights laws”). In 2002, the Supreme Court in National Railroad Passenger Corp. v. Morgan curtailed the continuing violations doctrine. 536 U.S. 101, 105 (2002). Before Morgan, the Ninth Circuit recognized continuing violations so long as a plaintiff alleged that a defendant either (1) engaged in “serial

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violations” of “sufficiently related” discriminatory acts, of which at least one falls within the relevant period of limitations or (2) carried out a “systematic policy or practice” of discrimination that operated in part within the limitations period. Cherosky, 330 F.3d at 1246. In Morgan, however, the Supreme Court substantially limited the continuing violations doctrine, rejecting its application to so-called “serial violations” that constituted discrete acts.^[2]Specifically, the Supreme Court held that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Morgan, 536 U.S. at 113.

A discrete discriminatory act is conduct that “‘occurred' on the day it ‘happened, '” such as “termination, failure to promote, denial of transfer, or refusal to hire.” Id. at 110, 114. For discrete discriminatory acts, “[e]ach incident of discrimination . . constitutes a separate actionable ‘unlawful...