UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Melissa Fireside

v. Civil No. 17-cv-374-LM Opinion No.

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.,

(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,

(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.,

, 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,

(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,

(9th Cir. 2002) (citing

McDonnell Douglas,

).

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,

, at *3 (D. Mass. Apr. 22, 2016) (internal quotation

marks, citation, and emphasis omitted); see also Garayalde-Rijos

v. Municipality of Carolina,

(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.,

(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,

(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,

(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.,

(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,

, 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.

(citing Yartzoff v. Thomas,

(9th Cir. 1987)); see also Villiarmo v. Aloha Island

Air, Inc.,

(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,

, 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,

, 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.,

(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),

, 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.,

(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.,

(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,

, and the administrative rule, see OAR 839-010-

0140. Folz v. State,

(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.

15