Fireside v. College for America

          ORDER

          LANDYA MCCAFFERTY, UNITED STATES DISTRICT JUDGE.

         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 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.

         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 fulltime 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, 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 . . . 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 ...