Committe v. Miller Nash Graham & Dunn LLP, 3:18-cv-01013

Plaintiff (Committe), a former attorney, sued lawyers who previously represented Oregon State University (OSU), alleging age-discrimination retaliation after he was not hired for an accounting faculty position.
Plaintiff previously brought related claims against OSU that were dismissed; he then sued OSU’s counsel alleging they colluded with OSU to retaliate against him.
The Court originally dismissed the complaint for failure to state a claim, granted leave to amend, denied reconsideration, and plaintiff filed an amended complaint asserting only an ADEA/age-discrimination retaliation claim.
The amended complaint alleged counsel’s normal litigation activities and advice (including motion practice and statements about proposed complaints) amounted to an adverse employment action and a conspiracy to deny him the job.
The Court found these allegations conclusory and repleaded from the prior deficient complaint; it concluded counsel’s litigation conduct does not constitute an adverse employment action and that amendment would be futile.
The Court granted plaintiff’s IFP application but dismissed the amended complaint with prejudice and entered final judgment against plaintiff.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendants’ litigation conduct can constitute an adverse employment action forming the basis of an ADEA/retaliation claim	Committe: counsel’s representation of OSU and related motions/statements were part of a conspiracy to retaliate and caused his failure to obtain the job	Defendants: representing a client and engaging in normal adversarial motion practice is not an adverse employment action and is privileged litigation conduct	Court: Rejected plaintiff; litigation conduct is not an adverse employment action and the allegations are conclusory and implausible
Whether plaintiff pleaded a plausible retaliation claim (sufficient factual matter)	Committe: alleged causal link between prior lawsuits and denial of employment	Defendants: allegations are threadbare, speculative, and legal conclusions without factual support	Court: Complaint fails Twombly/Iqbal plausibility standard; dismissal warranted
Whether leave to further amend is appropriate	Committe: previously granted leave and returned an amended complaint	Defendants: prior dismissal explained deficiencies; further amendment would be futile	Court: Amendment would be futile; dismissal with prejudice

Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard for pleadings)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (requires factual allegations sufficient to state a plausible claim)
Watison v. Carter, 668 F.3d 1108 (9th Cir. standard equating §1915 screening with Rule 12(b)(6))
Haines v. Kerner, 404 U.S. 519 (pro se pleadings construed liberally)
Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621 (pro se amendment notice and opportunity)
Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136 (elements of retaliation/causation analysis)
Wollam v. Brandt, 961 P.2d 219 (attorney litigation statements and conduct may be privileged under Oregon law)
Mantia v. Hanson, 79 P.3d 404 (extension of litigation privilege to conduct in connection with litigation)
Jamal v. Wilshire Mgmt. Leasing Corp., 320 F. Supp. 2d 1060 (district-court discussion of prima facie retaliation elements)