noting three year statute of limitations for violation under WIWASummary of this case from Charlot v. Ecolab, Inc.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
MOTION TO DISMISS PLAINTIFF'S SECOND AMDENDED COMPLAINT
FOR FAILURE TO STATE A CLAIM
BEFORE THE COURT is Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint for failure to state a claim (ECF. No. 24). This mattei was heard without oral argument on April 23, 2012. The Court has reviewed the motion, the response, and the reply, and is fully informed.
Plaintiff, Cynthia Walsh ("Walsh"), filed a First Amended Complaint (ECF No. 7) on June 14, 2011, asserting five causes of action: (1) unlawful discharge from employment due to age, sex and physical limitation in violation of the Washington Law Against Discrimination ("WLAD"); (2) failure to accommodate a physical limitation in violation of the WLAD; (3) unlawful retaliation in violation of the WLAD; (4) failure to provide meal and break periods in violation of Washington's Industrial Welfare Act, RCW Chapter 49.12; and (5) breach of an implied contract of employment. The Court dismissed the First Amended Complaint on February 3, 2012, for failure to adequately support each cause of action with factual allegations. ECF No. 22. The Court did, however, grant Walsh leave to file a second amended complaint within fifteen (15) days. ECF No. 22.
Walsh filed a Second Amended Complaint on February 14, 2012. ECF No. 23. The Second Amended Complaint asserts the same causes of action for unlawful discharge due to age, sex and physical limitation, failure to accommodate a physical limitation, unlawful retaliation under the WLAD, and failure to provide meal and break periods. It also alleges two new causes of action under Washington common law for retaliation and wrongful termination in violation of public policy. ECF No. 23.
The Second Amended Complaint does not reassert Walsh's claim for breach of an implied employment contract.
On February 29, 2012, Defendant Yakima Regional Medical Center ("the Hospital") moved to dismiss Walsh's statutory claims for unlawful discharge, failure to accommodate, unlawful retaliation, and failure to provide meal and break periods for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). ECF No. 24. The Hospital does not challenge the sufficiency of Walsh's common law claims for retaliation and wrongful termination in violation of public policy in this motion. ECF No. 25 at 2.
Plaintiff Cynthia Walsh is a former employee of Defendant Yakima Regional Medical Center. From 1992 to September of 2008, Walsh was employed by the Hospital as a respiratory therapist. In this position, Walsh's primary function was to aid patients with breathing during surgery and during rehabilitation in the hospital's intensive care unit.
On May 25, 2008, Walsh was diagnosed with a condition known as Achilles insertional calcific tendonosis in her left foot. Believing that this condition had been caused by her employment as a respiratory therapist, Walsh filed a claim for workers compensation benefits with the Washington Department of Labor and Industries. Because the condition limited her ability to perform the ordinary duties of a respiratory therapist, Walsh also requested an accommodation from the Hospital.
The Hospital allowed Walsh to perform "light duty" work as an accommodation of her Achilles condition from late May to early September of 2008. On September 8, 2008, the Hospital discontinued Walsh's "light duty" assignment. Rather than granting Walsh a further accommodation, the Hospital terminated her employment and placed her on "time loss compensation benefits" managed by the Hospital. Pl.'s Second Am. Compl., ECF No. 23, at ¶ 2.48.
The Court has previously set forth in detail the standards by which a complaint is evaluated on a motion to dismiss for failure to state a claim. See ECF No. 22 at 2-3. Those same standards apply to the instant motion. In brief, dismissal of a complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is only warranted when the complaint fails to present a "cognizable legal theory" or contains insufficient facts to support potential relief under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9t Cir. 1990). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Even when a complaint fails to state a claim for relief, however, "[d]ismissal without leave to amend is improper unless it is clear that the complaint could not be saved by an amendment." Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009). The standard for granting leave to amend is generous. The court considers five factors in assessing the propriety of leave to amend—bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint. United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011).
A. Age and Gender Discrimination
The WLAD protects employees age 40 and over from discrimination on the basis of age. RCW 49.44.090(1). "To make out a prima facie case of age discrimination, an employee must show that: (1) she was within the statutorily protected age group; (2) was discharged; (3) was doing satisfactory work; and (4) was replaced by a younger person." Balkenbush v. Ortho Biotech Prods., L.P., 653 F.Supp. 2d 1115, 1122 (E.D. Wash. 2009) (citing Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 362, 753 P.2d 517 (1988)).
The WLAD also protects employees from discrimination on the basis of gender. "To establish a prima facie case of gender discrimination, an employee must prove: (1) membership in a protected class; (2) the employee is qualified for the job or performing substantially equal work; (3) an adverse employment decision, including termination or denial of promotion; and (4) selection by the employer of a replacement or promoted person from outside the protected class." Id. (citing Kuest v. Regent Assisted Living, Inc., 111 Wash.App. 36, 44, 43 P.3d 23 (2002)).
The Court previously ruled that Walsh's First Amended Complaint failed to state a claim for age and gender discrimination. ECF No. 22 at 5-6. With respect to the age discrimination claim, the Court ruled that Walsh had not sufficiently alleged that she was doing "satisfactory work" as a respiratory therapist at the time of her termination in September of 2008. ECF No. 22 at 5. Similarly, with respect to the gender discrimination claim, the Court ruled that Walsh had not sufficiently alleged that she was "qualified" to work as a respiratory therapist or capable of performing "substantially equal work" when she was terminated, "particularly in view of the work restrictions imposed on her after May 2008." ECF No. 22 at 5. The Court further ruled that Walsh's First Amended Complaint contained nothing more than a "threadbare recital" of the final elements of both claims: that she was replaced by a younger employee and/or was replaced by a male employee. ECF No. 22 at 6. "In sum," the Court ruled, "Plaintiff fails to allege how age and gender factored into her termination." ECF No. 22 at 6.
Walsh's Second Amended Complaint does not remedy the deficiencies identified in the Court's prior order. First, Walsh has still failed to allege that she was doing "satisfactory work" as a respiratory therapist when she was terminated on September 8, 2008. Indeed, Walsh has failed to allege that she performed any work as a respiratory therapist following the diagnosis of her Achilles condition in May of 2008. Similarly, Walsh has still failed to allege that she was "qualified" to perform the duties of a respiratory therapist or that she was capable of performing "substantially equal work" when she was terminated. Once again, Walsh's allegations that she required an accommodation for her Achilles condition (i.e., "light duty" work) indicate that she was neither performing "satisfactory work" as a respiratory therapist nor "qualified" to perform such work (or "substantially equal" work) when she was terminated on September 8, 2008.
Moreover, Walsh has still failed to adequately allege how age or gender factored into the Hospital's decision to terminate her. Although Walsh has supplemented her complaint with three general allegations of age and gender discrimination made "on information and belief" (see Pl.'s Second Am. Compl., ECF No. 23, at ¶¶ 2.45, 2.105, 2.106), these allegations amount to mere speculation and are therefore insufficient to state a claim for relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Factual allegations must be enough to raise a right to relief above the speculative level[.]"). At bottom, the only new allegation relevant to Walsh's age and gender discrimination claims is that "HMA replaced Walsh with contracted, lower paid, temporary, male traveling respiratory therapists." Pl.'s Second Am. Compl., ECF No. 23, at ¶ 2.103. This too is insufficient to state a claim for age or gender discrimination. See Iqbal, 556 U.S. at 678. Walsh's claims for age and gender discrimination are hereby dismissed.
B. Disability Discrimination (Disparate Treatment)
A disabled employee has two causes of action under the WLAD: " for failure to accommodate, when the employer fails to take steps reasonably necessary to accommodate an employee's condition, and  for disparate treatment, when the employer discriminates against an employee because of the employee's condition." Johnson v. Chevron U.S.A., Inc., 159 Wash.App. 18, 2728, 244 P.3d 438, 443 (2010) (internal quotations and citations omitted). "An employee alleging disability discrimination must establish that he or she (1) is in a protected class (disabled), (2) was discharged, (3) was doing satisfactory work, and (4) was replaced by someone not in the protected class." Roeber v. Dowty Aerospace Yakima, 116 Wash.App. 127, 135, 64 P.3d 691, 696 (2003). Ultimately, a disabled employee must prove that discriminatory intent was "substantial factor" in the employer's decision to terminate. Riehl v. Foodmaker, Inc., 152 Wash.2d 138, 149, 94 P.3d 930, 936 (2004). In order to survive a motion to dismiss for failure to state a claim, however, a disabled employee need only allege facts sufficient to establish each element of the prima facie case. See id. at 149-50, 94 P.3d 930, 936 (noting that presenting a prima facie case gives rise to a presumption of discriminatory motive sufficient to withstand summary judgment).
The Court previously ruled that Walsh's First Amended Complaint failed to sufficiently allege that Walsh was doing satisfactory work and that she was replaced by a non-disabled employee. ECF No. 22 at 7. This ruling was based upon Walsh's "threadbare recitals" that she had performed "excellent work," that she was "capable of performing all the essential functions of the job," and that she was "replaced by employees who did not have a disability." See Pl.'s First Am. Compl., ECF No. 7, at ¶¶ 2.17-18, 2.22. Walsh has subsequently amended her complaint to include the following additional allegations: (1) "Walsh never had anything less than positive evaluations, reviews, and feedback in her sixteen years of employment with HMA;" (2) "Walsh had never had any adverse employment actions taken against her in sixteen years of employment with HMA." Pl.'s Second Am. Compl., ECF No. 23, at ¶¶ 3.24-25. These allegations do not specifically support her bare assertion that she "was doing satisfactory work at the time of termination." See Pl.'s Second Am. Compl., ECF No. 23, at ¶ 3.5 (emphasis added).
The Court notes that these allegations are made in support of Walsh's common law retaliation claim and were not incorporated by reference into her disability discrimination claim.
Moreover, Walsh has failed to supplement her complaint with further allegations concerning replacement by a non-disabled employee. Like her former allegation that she was "replaced by employees who did not have a disability" (see Pl.'s First Am. Compl., ECF No. 7, at ¶ 2.22), Walsh's current allegation that she "was replaced by a younger person, a male and a person without a disability" (see Pl.'s Second Am. Compl., ECF No. 23, at ¶ 3.6) is nothing more than a "threadbare recital" of the last element of her claim. Accordingly, Walsh has once again pleaded insufficient facts to state a claim for disability discrimination under the WLAD. This claim is therefore dismissed.
C. Failure to Accommodate
As noted above, a disabled employee may bring a cause of action under the WLAD for either disability discrimination or for failure to accommodate his or her disability. Johnson, 159 Wash.App. at 27-28, 244 P.3d 438, 443. To establish a prima facie case of failure to accommodate, a plaintiff must show: "(1) the employee had a sensory, mental, or physical abnormality that substantially limited his or her ability to perform the job; (2) the employee was qualified to perform the essential functions of the job in question; (3) the employee gave the employer notice of the abnormality and its accompanying substantial limitations; and (4) upon notice, the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the abnormality." Davis v. Microsoft Corp., 149 Wash.2d 521, 532 (2003) (emphasis in original) (quotation and citation omitted).
The Court previously indicated that Walsh's failure to accommodate claim suffered from the same deficiency as her age and gender discrimination claims— i.e., a "fail[ure] to factually allege how she remained 'qualified' to perform the 'essential functions' of her job as a respiratory therapist, notwithstanding her alleged disability and the physical restrictions imposed upon her." ECF No. 22 at 7. As discussed above, Walsh's Second Amended Complaint has failed to cure this deficiency. Given that Walsh has neither identified the "essential functions" of her job as a respiratory therapist nor alleged how she remained qualified to perform those essential functions after suffering her alleged disability, she has failed to state a claim for failure to accommodate her in a respiratory therapist capacity. See Davis, 149 Wash.2d at 535, 70 P.3d 127, 133-34 (granting judgment as a matter of law in favor of employer where employee failed to present any evidence that he remained qualified to perform the essential functions of his existing job after he became disabled). To the extent that Walsh wishes to pursue such a claim, she may have fifteen (15) days to amend her complaint a third and final time.
However, Walsh has now stated a claim for failure to accommodate on a separate theory: that the Hospital unreasonably declined to reassign her to a different job. See Davis, 149 Wash.2d at 536-38, 70 P.3d 126, 134-35 (recognizing independent viability of "accommodation in current job" and "accommodation by reassignment" theories in failure to accommodate case). In her Second Amended Complaint, Walsh alleges that one reasonable accommodation would have been for the Hospital to assign her to a different position until her Achilles condition had healed. See Pl.'s Second Am. Compl., ECF No. 23, at ¶ 2.18. Walsh further alleges that, at the time she was terminated, "HMA had many positions available at its Yakima hospital facility." See Pl.'s Second Am. Compl., ECF No. 23, at ¶ 2.38. Finally, Walsh alleges that she "had worked at the hospital for sixteen years, and worked in medicine for 30 years, and had many qualifications and life experiences that made her a unique and special individual equipped to perform many jobs throughout the Hospital with an accommodation." See Pl.'s Second Am. Compl., ECF No. 23, at ¶ 2.39. These allegations are sufficient to state a claim for failure to accommodate on an "accommodation by reassignment" theory. See Davis, 149 Wash.2d at 536, 70 P.3d 126, 134.
Finally, the Court notes that Washington law does not appear to require a disabled employee to request a specific accommodation in order to prevail on a failure to accommodate claim. The Hospital's citation to Pulcino v. Fed. Express Corp., 141 Wash.2d 629, 643, 9 P.3d 787 (2000), overruled in part on other grounds by McClarty v. Totem Elec., 157 Wash.2d 214 (2006), for this proposition is unavailing. Nowhere in Pulcino did the Washington Supreme Court state that a plaintiff must make an "initial showing that he or she requested a specific accommodation that was both reasonable and available." Rather, Pulcino merely states that an employee must show "that a specific reasonable accommodation was available to the employer at the time the employee's physical limitation became known." 141 Wash.2d at 634, 9 P.3d 787, 795 (emphasis added).
While an employee may certainly suggest a specific accommodation, he or she is not required to do so as a matter of law. See Davis, 149 Wash.2d at 536-37, 70 P.3d 126, 134 ("The employer must take affirmative steps to assist the employee in the internal job search by determining the extent of the employee's disability, by inviting the employee to receive personal help from the employer's personnel office, and by sharing with the employee all job openings in the company."). Indeed, limiting the universe of "reasonable accommodations" to those that have been specifically requested by the employee would artificially limit the employer's duty to "reasonably accommodate" the employee. See Goodman v. Boeing Co., 127 Wash.2d 401, 408-09, 899 P.2d 1265, 1269-70 ("Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee's capabilities and available positions."). Accordingly, Walsh's failure to allege that she specifically requested any particular accommodation other than "light duty" work is immaterial at this stage of the proceedings.
RCW 49.60.210(1) provides that, "[i]t is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter." To state a prima facie case for retaliation in violation of RCW 49.60.210, a plaintiff must show that: (1) he or she engaged in protected activity; (2) the employer took adverse employment action; and (3) there is a causal link between the protected activity and the adverse action. Milligan v. Thompson, 110 Wash.App. 628, 638, 42 P.3d 418, 424 (2002).
As the Court previously noted in its order dismissing Walsh's First Amended Complaint, it is unclear whether filing a claim for workers' compensation benefits and requesting an accommodation for a disability constitute "protected activity" under the WLAD. ECF No. 22 at 8. Walsh has not offered any further analysis of this issue. Nevertheless, Given that Walsh has sufficiently supplemented her complaint with additional allegations of retaliation, the Court is inclined to allow Walsh to pursue her WLAD-based retaliation claims concurrently with her newly-asserted common law retaliation claims. The Court notes, however, that the ultimate success of Walsh's WLAD-based retaliation claims is contingent upon her ability to prove, inter alia, an underlying violation of the WLAD itself. See Griffith v. Boise Cascade, Inc., 111 Wash.App. 436, 444-45, 45 P.3d 589, 594 (2002) (affirming dismissal of wrongful termination in violation of public policy claim based upon request for reasonable accommodation under the WLAD where employee was unsuccessful on underlying failure to accommodate claim).
E. Meal and Break Periods
Walsh has now stated a claim for failure to provide adequate meal and break periods in violation of WAC 296-126-092. Specifically, Walsh has alleged that (1) she "repeatedly requested meal and break periods to [sic] her supervisor, and her requests were repeatedly denied by HMA;" (2) "she never punched in or out for meal or break periods;" and (3) evidence of the fact that she did not take meal or break periods is reflected in her time cards, which are in the Hospital's possession. Pl.'s Second Am. Compl., ECF No. 23, at ¶¶ 3.34-36; see also ¶¶ 2.108-115. These facts are sufficient, particularly in view Walsh's apparent inability to make more specific allegations without access to her timecards.
Although the Hospital has raised a legitimate question about whether the alleged violations occurred within the three-year statute of limitations period, the Court will reserve ruling on this issue until after Walsh has had an opportunity to examine her timecards. For the time being, Walsh's allegation that she was denied meal and break periods "just before [she] suffered her injury in May 2008" is sufficient to state a claim for a violation within the three-year statute of limitations period ending on May 17, 2011. Pl.'s Second Am. Compl., ECF No. 23, at ¶ 2.108.
ACCORDINGLY, IT IS HEREBY ORDERED:
1. Defendant's Motion to Dismiss is GRANTED as to Plaintiff's claims for (1) age discrimination; (2) gender discrimination; and (3) disability discrimination.
2. Defendant's Motion to Dismiss is DENIED as to Plaintiff's claims for (1) failure to accommodate; (2) WLAD-based retaliation; and (3) denial of meal and break periods.
3. Plaintiff may file a third and final amended complaint in an effort to remedy the deficiencies identified herein within fifteen (15) days of the date of this order.
The District Court Executive is hereby directed to enter this Order and provide copies to counsel.
THOMAS O. RICE
United States District Judge