“If there are two alternative explanations, 4 – OPINION & ORDER one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to dismiss under Rule 12(b)(6).”
How later courts described this case
- “If there are two alternative explanations, 4 – OPINION & ORDER one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to dismiss under Rule 12(b)(6).”
- “although the McDonnell Douglas framework is a useful tool to assist plaintiffs at the summary judgment stage so that they may reach trial, nothing compels the parties to invoke the McDonnell Douglas presumption.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID CHRIS, an individual, No. 3:21-cv-01266
Plaintiff, OPINION & ORDER
v.
INSIL KANG, Senior Director, DAVID
LEWIS, Elder Board, and VILLAGE
CHURCH
Defendants.
David Chris
13259 SW 169th Ave
Beaverton, OR 97007
Plaintiff Pro Se
Nicole M. Rhoades
Cheney E. Moss
Davis Rothwell Earle & Xochihua, PC
200 SW Market St., Suite 1800
Portland, OR 97201-5745
Attorneys for Defendant
1 – OPINION & ORDER
HERNÁNDEZ, District Judge:
Plaintiff brings this discrimination action pro se against Defendant Village Baptist
Church (“Village Church”) and Individual Defendants Insil Kang and David Lewis. Defendants
move to dismiss Plaintiff’s claims. For the reasons that follow, the Court grants in part and
denies in part Defendants’ motion.
BACKGROUND
Plaintiff’s complaint contains the following allegations. Compl. at 4, 6, ECF 2.
Plaintiff applied for a job at the Village Church. He alleges that at some point during this
process, Defendant Insil Kang, who works in human resources, mentioned his language skills.
He felt that her actions were unfair and constituted discrimination. Plaintiff writes “(National
origin I am mixed Japan and white”). Eventually, Defendant Kang notified Plaintiff that the
church had selected a different candidate.
Plaintiff then complained about Defendant Kang’s conduct to the Church’s elder board.
During this process, an elder board member mentioned Plaintiff’s language skills and another
elder board member, Defendant David Lewis, sent an email that allegedly said, “David and their
family is not a native English speaker.” Compl. at 6. Defendant Lewis’s comments insulted
Plaintiff in front of the Church’s elder board.
Plaintiff filed this action on August 25, 2021. Plaintiff alleges he was not selected for the
position due to his color, race, national origin, age, and disability. He alleges that Defendants’
conduct violated Title VII of the Civil Rights Act of 1964, as amended (“Title VII”) for
discrimination/disparate treatment. Plaintiff further alleges that he was subject to discrimination
under the Americans with Disabilities Act of 1990, as amended (“ADA”) and the Age
Discrimination in Employment Act of 1967, as amended (“ADEA”).
2 – OPINION & ORDER
Defendants moved to dismiss Plaintiff’s claims on November 4, 2021. Def. Mot., ECF
13. In response to Defendants’ motion, Plaintiff filed a Motion to Dismiss (ECF 25), a Motion to
Strike Defendants’ Exhibit E (ECF 26), and a Motion for Entry of Default (ECF 27). On January
13, 2022, Plaintiff filed a response to Defendants’ Motion to Dismiss. Pl. Resp., ECF 36. The
Court struck Defendants’ first motion for failure to confer and denied Plaintiff’s motions as
moot. Order, ECF 39. On March 29, 2022, after conferral, Defendants renewed their motion to
dismiss Plaintiff’s claims. Def. Mot. 2, ECF 40. Plaintiff responded and the Court took
Defendants’ renewed motion under advisement on April 18, 2022.
DISCUSSION
Defendants move to dismiss all of Plaintiff’s claims. In his response, Plaintiff abandoned
his ADA and ADEA failure to hire claims, thus the Court begins by addressing Plaintiff’s only
remaining claim: failure to hire brought under Title VII.
Under Title VII it is unlawful for an employer to refuse to hire an individual because of
their “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. Plaintiff’s action is
brought under a disparate treatment theory.
“To establish a prima facie case of disparate treatment, the plaintiff must offer evidence
that gives rise to an inference of unlawful discrimination.” Fragante v. City & Cty. of Honolulu,
888 F.2d 591, 595 (9th Cir. 1989) (citation and internal quotation marks omitted). A Plaintiff
may rely on either direct or circumstantial evidence to establish a claim under Title VII.
See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1029 (9th Cir. 2006) (citations
omitted).
Plaintiff’s allegations give rise to the inference of unlawful discrimination. First, Plaintiff
alleges that he is Japanese and White – satisfying the element that he is a member of a class
3 – OPINION & ORDER
protected by Title VII. Second, the complaint sufficiently alleges that Defendants intended to
discriminate against Plaintiff based on his race, color, or national origin. Plaintiff alleges that he
applied for a job but was not hired due to his language skills and accent. He alleges that during
the job application process, and after he was rejected for the job, Defendants made express
comments about his language skills. As noted above, Plaintiff may rely on circumstantial
evidence to establish intent to discriminate. The intent to discriminate finds support in the
express remarks Plaintiff alleges Defendants made about his language skills.
The Ninth Circuit has recognized the link between language and discrimination based on
national origin.
Accent and national origin are obviously inextricably intertwined in many cases.
It would therefore be an easy refuge in this context for an employer unlawfully
discriminating against someone based on national origin to state falsely that it was
not the person's national origin that caused the employment or promotion
problem, but the candidate's inability to measure up to the communications skills
demanded by the job. We encourage a very searching look by the [trial] courts at
such a claim.
Fragante v. City & Cty. of Honolulu, 888 F.2d 591, 596 (9th Cir. 1989).
Defendants ask the Court to take notice of a document that allegedly establishes that
English is not Plaintiff’s first language. The Court declines to take judicial notice of this
document or consider any arguments related to Plaintiff’s actual language abilities. Defendants’
arguments about any potential reasonable basis for their decision not to hire Plaintiff may
provide a valid defense at a later stage in the litigation but are not a basis to dismiss Plaintiff’s
claim now. See DeHorney v. Bank of Am. Nat'l Tr. & Sav. Ass'n, 879 F.2d 459, 467 (9th Cir.
1989) (noting that once plaintiff establishes a prima facie case of disparate treatment, the burden
shifts to defendant to articulate legitimate, nondiscriminatory reasons for its actions); see also
Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011) (“If there are two alternative explanations,
4 – OPINION & ORDER
one advanced by defendant and the other advanced by plaintiff, both of which are plausible,
plaintiff's complaint survives a motion to dismiss under Rule 12(b)(6).”).
Finally, Defendants contend that Plaintiff has not alleged a person with decision making
power made discriminatory comments.1 Plaintiff alleges the comments about his language skills
were made by an individual who worked in human resources and members of the church elder
board. As a pro se Plaintiff at the motion to dismiss stage, these allegations are sufficient to
establish the allegedly discriminatory comments were made by people with decision-making
power at Defendant Village Church. The Court denies Defendants’ motion to dismiss Plaintiff’s
Title VII claim against Defendant Village Church.
The Court grants the motion as to Individual Defendants Insil Kang and David Lewis.
The Ninth Circuit has “consistently held that Title VII does not provide a cause of action for
damages against supervisors or fellow employees.” Holly D. v. California Inst. of Tech., 339
F.3d 1158, 1179 (9th Cir. 2003); Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1189
(9th Cir. 1998) (“civil liability for employment discrimination does not extend to individual
agents of the employer who committed the violations, even if that agent is a supervisory
1 Defendants also rely on the McDonnell Douglas framework to attack Plaintiff’s complaint. The
McDonnel Douglas framework establishes one avenue a Plaintiff may take to establish a
disparate treatment claim. It does not set out ridged elements a plaintiff must plead in a failure to
hire claim. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105 (9th Cir. 2008); McGinest v.
GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004) (“although the McDonnell
Douglas framework is a useful tool to assist plaintiffs at the summary judgment stage so that
they may reach trial, nothing compels the parties to invoke the McDonnell
Douglas presumption.”).
5 – OPINION & ORDER
employee”).2 Accordingly, Plaintiff cannot maintain a Title VII action against Individual
Defendants Insil Kang and David Lewis.
In his response to Defendants’ renewed motion to dismiss, Plaintiff moved to file an
Amended Complaint that contains greater factual detail. Defendant does not object to Plaintiff
filing an Amended Complaint.3 The Court grants Plaintiff’s motion to file an Amended
Complaint. Plaintiff may file his Amended Complaint within 14 days of this order.
CONCLUSION
The Court GRANTS IN PART and DENIES IN PART Defendant’s Motion to Dismiss
[40].
IT IS SO ORDERED.
DATED:____M__a_y_ _3_, _2_0_2_2_________.
______________________________
MARCO A. HERNÁNDEZ
United States District Judge
2 Plaintiff argues the Individual Defendants could be jointly and severally liable for any judgment
entered against Defendant Village church under Oregon law. This does not change the Court’s
finding that Title VII does not allow a cause of action in these circumstances. Moreover,
Defendant’s Corporate Disclosure statement shows that it is a non-profit corporation. See ECF
12.
3 In their reply, Defendants argue any state law claims brought by Plaintiff in his Amended
Complaint are time-barred. The Court will not address this argument since Defendants’ motion is
against Plaintiff’s initial complaint.
6 – OPINION & ORDER