Macon v. United Parcel Service, Inc., No. 2:2012cv00260 - Document 26 (W.D. Wash. 2012)

Court Description: ORDER GRANTING in part and DENYING in part Dft's 17 Motion to Dismiss, by Judge Richard A Jones. (CL)

Download PDF

1 HONORABLE RICHARD A. JONES 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 DAMETRE MACON, 11 CASE NO. C12-260 RAJ Plaintiff, 12 13 14 15 16 17 v. UNITED PARCEL SERVICE, INC., ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS Defendant. I. INTRODUCTION This matter comes before the court on defendant United Parcel Service, Inc.’s 18 (“UPS”) motion to dismiss under Fed. R. Civ. P. 12(b)(6). Plaintiff Dametre Macon 19 alleges claims of disability discrimination, gender discrimination and retaliation under the 20 Washington Law Against Discrimination (“WLAD”), wrongful discharge in violation of 21 public policy, and violation of the Family and Medical Leave Act (“FMLA”) and the 22 Washington Family Leave Act (“WFLA”). UPS moves to dismiss all of Macon’s claims 23 without leave to amend. 24 25 26 27 ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 1 1 Having reviewed the memoranda, the complaint, and the record herein, the court 2 GRANTS in part and DENIES in part defendant’s 12(b)(6) motion to dismiss.1 3 II. BACKGROUND 4 Macon, an Iraq war Army veteran, suffers from post-traumatic stress disorder 5 (“PTSD”) and depression. Dkt. # 13 ¶ 7 (First Am. Compl.). Macon began working for 6 UPS as a package handler in November 2007. Dkt. # 13 ¶ 11. Within four months, UPS 7 promoted Macon to part-time supervisor. Dkt. # 13 ¶ 13. Soon after her promotion, 8 Macon observed several co-workers, including other part-time supervisors and managers, 9 involved in the use and sale of prescription and illegal drugs. Dkt. # 13 ¶ 18. In April 10 2008, Macon reported the drug activity to her superiors. Dkt. # 13 ¶ 19. UPS 11 investigated and eventually terminated two part-time supervisors. Dkt. # 13 ¶ 21. 12 Macon’s manager and other supervisors involved in the drug activity were not 13 terminated. Dkt. # 13 ¶¶ 22-23. They began to harass Macon by taking her supplies, 14 scrutinizing her work, and treating her more harshly than other employees. Dkt. # 13 ¶¶ 15 24-29. Macon’s managers changed her work schedule and gave her extra assignments, 16 making it difficult for her to complete her work. Dkt. # 13 ¶¶ 28-30. Macon reported the 17 harassment to a manager, but UPS took no action to address it. Dkt. # 13 ¶ 33. In May, 18 Macon’s request to transfer to a different shift was denied. Dkt. # 13 ¶¶ 35-36. In June, 19 her second request for a transfer was granted, but her schedule was changed to a less 20 desirable weekend shift. Dkt. # 13 ¶¶ 37-38. In August, at the recommendation of her 21 therapist, Macon took medical leave from UPS to treat symptoms of PTSD and 22 depression she experienced as a result of the harassment. Dkt. # 13 ¶ 41. 23 24 1 Macon objects, without citation to any authority, to the court’s review of two unpublished orders from the Western District of Washington that UPS submitted as exhibits 25 attached to a declaration. Dkt. # 18, Exs. B and C. “The distinction between ‘published’ and 26 ‘unpublished’ federal district court decisions is meaningless” and this court may consider “unpublished” district court decisions as persuasive authority. See Cont’l Western Ins. Co. v. 27 Costco Wholesale Corp., Case No. C10-1987 RAJ, 2011 WL 3583226 (W.D.Wash. 2011). ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 2 1 In February 2009, Macon informed UPS that she was ready to return to work. 2 Dkt. # 13 ¶ 43. She gave UPS a note from her psychologist requesting accommodation 3 for her disability. Dkt. # 13 ¶ 44. Also in February, Macon filed a charge with the 4 EEOC, alleging harassment and unequal pay. Dkt. # 13 ¶ 42. UPS stalled the 5 accommodation process. Dkt. # 13 ¶ 45. The EEOC issued a right to sue letter in 6 October. Dkt. # 13 ¶ 46. UPS met with Macon in November to discuss her requests for 7 accommodation. Dkt. # 13 ¶ 47. On December 24, UPS informed Macon that it could 8 not meet her requests and terminated her employment. Dkt. # 13 ¶¶ 49-50. 9 III. ANALYSIS 10 A. Legal Standard 11 Federal Rule of Civil Procedure 8 requires that each claim in a pleading be 12 supported by “a short and plain statement of the claim showing that the pleader is entitled 13 to relief.” Fed. R. Civ. P. 8(a). Rule 12(b)(6) provides that a motion to dismiss may be 14 made if the plaintiff fails “to state a claim upon which relief can be granted.” Fed. R. 15 Civ. P. 12(b)(6). In considering whether a complaint states a claim, the court assumes the 16 truth of the complaint’s factual allegations and credits all reasonable inferences arising 17 from its allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). The plaintiff 18 must point to factual allegations that “state a claim to relief that is plausible on its face.” 19 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). “A claim has facial plausibility 20 when the plaintiff pleads factual content that allows the court to draw the reasonable 21 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 22 U.S. 662, 678 (2009). “Although this standard requires that a claim be ‘plausible on its 23 face,’ it does not require that a complaint contain ‘detailed factual allegations.’” 24 Sheppard v. David Evans and Assoc., No. 11-35164, 2012 WL 3983909, at *2 (9th Cir. 25 Sept. 12, 2012) (quoting Iqbal, 556 U.S. at 678). “The issue is not whether a plaintiff 26 will ultimately prevail, but whether the claimant is entitled to offer evidence to support 27 the claims. Indeed, it may appear on the face of the pleadings that a recovery is very ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 3 1 remote and unlikely but that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236 2 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984). Even when a complaint fails to state a claim for relief, however, “[d]ismissal 3 4 without leave to amend is improper unless it is clear that the complaint could not be 5 saved by an amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009). The 6 standard for granting leave to amend is generous. The court considers five factors in 7 assessing the propriety of leave to amend—bad faith, undue delay, prejudice to the 8 opposing party, futility of amendment, and whether the plaintiff has previously amended 9 the complaint. United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011). 10 B. Discrimination Under the WLAD (RCW 49.60.180) 11 The WLAD states that “it is an unfair practice for any employer to discriminate 12 against any person in compensation or any other terms or conditions of employment 13 because of . . . the presence of any sensory, mental, or physical disability.” RCW 14 49.60.180(3). Under RCW 49.60.180, a disabled employee has a cause of action for at 15 least two different types of discrimination. Riehl v. Foodmaker, Inc., 152 Wash. 2d 138, 16 145, 94 P.3d 930 (2004). The employee may file a disparate treatment claim if the 17 employer discriminated against the employee because of the employee’s condition. Id. 18 The employee also may allege failure to accommodate where the employer failed to take 19 steps “reasonably necessary to accommodate the employee’s condition.” Id. A plaintiff 20 may maintain both causes of action.2 Id. Macon does so here.3 21 22 23 24 25 26 27 2 UPS argues that Macon cannot bring a claim for both disparate treatment and failure to accommodate. The authority UPS cites does not support this proposition. Pulcino v. Federal Express Corp., 141 Wash. 2d 629, 640, 9 P.3d 787 (2000), overruled in part on other grounds by McClarty v. Totem Elec., 157 Wash. 2d 214, 137 P.3d 844 (2006), simply explains the difference between the two claims. 3 Macon cites a number of allegations of harassment in support of her claim for disparate treatment, but Macon does not allege a separate cause of action for hostile work environment. Each instance of harassment is not a separate adverse employment action. ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 4 1 2 1. Disability Disparate Treatment A prima facie case of disparate treatment disability discrimination has four 3 elements: 1) Plaintiff was disabled; 2) Plaintiff was able to perform her job duties; 3) 4 Plaintiff was fired and not rehired; and 4) Plaintiff was replaced by someone who was not 5 disabled. Riehl, 152 Wash. 2d at 150. 6 UPS only challenges the second and fourth factors. With respect to the second 7 factor, UPS argues that Macon failed to allege that she was able to perform her job duties 8 at the time of her termination. Dkt. # 17 at 5. UPS argues that Macon’s allegations that 9 she had not done the job in sixteen months and that she could not do the job without 10 accommodation are fatal to her claim. 11 UPS cites no authority for the proposition that the WLAD would allow an 12 employer to terminate an employee based on the presence of a disability if the employee 13 is able to perform the job with an accommodation. UPS only cites a proviso in RCW 14 49.60.180(1), which states that the WLAD does not prohibit an employer from refusing 15 to hire a disabled person if the disability prevents the person from performing the job. 16 Under RCW 49.60.180(1), it is an unfair practice for any employer: 17 18 19 20 21 22 23 24 25 26 (1) to refuse to hire any person because of . . . the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, unless based upon a bona fide occupational qualification: PROVIDED, That the prohibition against discrimination because of such disability shall not apply if the particular disability prevents the proper performance of the particular worker involved. (emphasis added). Although subsection (2), covering discharges, does not contain the proviso, the Washington Administrative Code states that the proviso applies to “all circumstances where ability to do the job is material.” WAC 162-22-050(3). Therefore, two things must occur before an unfair practice is committed: the employer must have refused to hire or otherwise discriminated because the person has a disability, and the disability 27 ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 5 1 must not be of a nature that prevents the person from properly performing the particular 2 job. WAC 162-22-050(2); Clarke v. Shoreline School Dist., 106 Wash. 2d 102, 720 P.2d 3 793 (1986). 4 In determining whether the disability prevents the plaintiff from performing a 5 particular job, Washington courts consider whether the plaintiff is unable to perform an 6 “essential function” of the job. For example, in Clarke, the court held that the 7 termination of a special education teacher did not violate the WLAD where his disability, 8 legal blindness and profound hearing loss, “constituted ‘a hazard to the welfare and safety 9 of students under [Clarke’s] charge,’” thus preventing him from performing essential 10 functions of the job. Clarke, 106 Wash. 2d at 119. In Dedman v. Washington Personnel 11 Appeals Board, the plaintiff was found to be unable to perform the job of a correction 12 officer where her back and knee injury prevented her from using force to subdue inmates, 13 an essential function of the job. 98 Wash. App. 471, 481-82, 989 P.2d 1214 (1999). 14 Here, Macon alleges that the essential function of her job was to “ensure proper 15 sorting of irregular sized boxes in a timely manner.” Dkt. # 13 ¶ 16. Macon alleges that 16 “[t]he stress of the supplies taking, the assignment of extra, difficult tasks, the poor 17 treatment from co-workers and supervisors, the initial denial of her transfer request and 18 the final schedule change combined to exasperate and ‘light up’ Dametre’s disability 19 (PTSD and depression).” Dkt. # 13 ¶ 40. PTSD and depression caused Macon to be 20 fatigued, on edge, and distant, and have trouble interacting with others. Dkt. #13 ¶¶ 8-9. 21 Nevertheless, Macon alleges that while experiencing symptoms of PTSD and depression, 22 she was still able to perform the job: “[e]ven then, Dametre’s overall work product 23 (taking all of her time at UPS even after the retaliation) was satisfactory and above par 24 compared to other similarly situated employees.” Dkt. # 13 ¶ 60. These allegations are 25 sufficient to allege that Macon was able to perform the essential job function of sorting 26 irregular boxes and that her disability did not prevent her from performing her job. 27 ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 6 1 With respect to the fourth factor, Macon alleges that she “was replaced by a non- 2 disabled person.” Dkt. # 13 ¶ 62. This allegation is sufficient to establish the fourth 3 element for the purposes of this motion. 4 5 2. Failure to Accommodate A prima facie case of a failure to accommodate claim has four elements: (1) the 6 employee had a disability that substantially limited her ability to perform the job; (2) the 7 employee was qualified to perform the job; (3) the employee gave the employer notice of 8 the abnormality and its accompanying substantial limitations; and (4) upon notice, the 9 employer failed to affirmatively adopt measures that were available to the employer and 10 medically necessary to accommodate the abnormality. Riehl, 152 Wash. 2d at 145. 11 UPS only challenges the fourth element. UPS argues that Macon’s complaint fails 12 to state a claim because she does not specifically allege the accommodations she 13 requested. Dkt. # 17 at 14-15. UPS asserts that Macon must allege facts demonstrating 14 that her requests for accommodation were reasonable or required by the WLAD. UPS 15 does not cite any authority supporting this assertion. 16 Employers have an affirmative obligation to reasonably accommodate the sensory, 17 mental, or physical limitations of disabled employees unless the accommodation can be 18 shown to impose an undue hardship on the employer's business. Doe v. Boeing Co., 121 19 Wash. 2d 8, 846 P.2d 531 (1993). But the WLAD does not require an employer to offer 20 the employee the precise accommodation she requests. Doe, 121 Wash. 2d at 20. Rather, 21 “the scope of an employer’s duty to accommodate an employee’s condition is limited to 22 those steps reasonably necessary to enable the employee to perform his or her job.” Doe, 23 121 Wash. 2d at 19. “Generally, the best way for the employer and employee to 24 determine a reasonable accommodation is through a flexible, interactive process.” RCW 25 49.60.040(7)(d); Frisino v. Seattle Sch. Dist. No. 1, 160 Wash. App. 765, 779, 249 P.3d 26 1044 (2011). In the case of depression or PTSD, a doctor’s note requesting 27 ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 7 1 accommodation is sufficient to allege that accommodation is medically necessary. Riehl, 2 152 Wash. 2d at 148. 3 In the complaint, Macon alleges that when she was ready to return to work, she 4 presented UPS with a note from her psychologist with details of the “type of 5 accommodations” that would allow her to successfully return to work. Dkt. # 13 ¶ 44. 6 This is sufficient to allege that accommodation was medically necessary. Macon further 7 alleges that UPS did not engage in the necessary inquiry to determine a reasonable 8 accommodation. Dkt. # 13 ¶ 67. Instead, “UPS intentionally stalled the accommodation 9 request process.” Dkt. # 13 ¶ 45. Although UPS acknowledged that it considered the 10 request outlined by Macon’s psychologist, Macon alleges that UPS did not inquire further 11 to determine whether alternative accommodations would be effective and reasonable. 12 Dkt. # 13 ¶¶ 48, 67. Macon alleges that “UPS failed to inquire of Dametre’s medical 13 provider if it felt that the requests for accommodation were unreasonable and failed to 14 seek alternative accommodations other than the ones requested.” Dkt. # 13 ¶ 67. In 15 December, after several requests for accommodation and more than nine months after her 16 initial request, UPS informed Macon that it could not meet her request for 17 accommodation. Dkt. # 13 ¶ 49. These allegations are sufficient to allege that UPS did 18 not meet its affirmative obligation to determine a reasonable, available accommodation 19 for Macon’s disability. 20 21 3. Gender Discrimination A prima facie case of gender discrimination alleging disparate treatment has four 22 elements: (1) the employee is a member of a protected class; (2) the employee is 23 qualified for the employment position or performing substantially equal work; (3) the 24 employee suffered an adverse employment action; and (4) similarly situated employees 25 not in plaintiff’s protected class received more favorable treatment. Kang v. U. Lim Am., 26 Inc., 296 F.3d 810, 818 (9th Cir. 2002); Davis v. West One Auto. Grp., 140 Wn. App. 27 449, 459, 166 P.3d 807 (2007). ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 8 1 Macon is a woman. Dkt. # 13 ¶ 1. She alleges that before her leave of absence, 2 she was qualified for her job as a part-time supervisor and performing the job as well or 3 better than her co-workers. Dkt. # 13 ¶¶ 56-58, 60. She alleges that she worked with 4 other part-time supervisors and most of her co-workers were male. Dkt. # 13 ¶¶ 14, 23. 5 Macon alleges that she was paid less than similarly situated male co-workers and the 6 disparity was a result of gender discrimination. Dkt. # 13 ¶ 61. 7 UPS argues that Macon fails to state a claim of gender discrimination because she 8 does not allege facts explaining her allegation that the male co-workers were “similarly 9 situated.” Dkt. # 17 at 7. UPS asserts that because it can provide a “much more plausible 10 explanation” than gender discrimination for the pay disparity, Macon’s claim does not 11 rise to the level of plausibility. This is not the standard. 12 The Ninth Circuit recently addressed the pleading standard in discrimination cases 13 in Sheppard v. David Evans and Associates. There, the plaintiff alleged that she was over 14 forty, she performed her job well, she was discharged, and five younger comparators kept 15 their jobs. Sheppard, 2012 WL 3983909, at *1. In support of the comparator allegation, 16 Sheppard asserted only that “there were five comparators at Evans in Oregon of which 17 Sheppard was the oldest,” and “[Sheppard’s] youngest comparators kept their jobs.” Id. 18 The court concluded that the allegation that the comparators kept their jobs “gives rise to 19 an ‘inference of age discrimination’ because it plausibly suggests that Evans had a 20 continuing need for [Sheppard’s] skills and services [because her] various duties were 21 still being performed” and “[i]t also plausibly suggests that employees outside her 22 protected class ‘were treated more favorably’ than Sheppard.” Id. at *3 (citations 23 omitted). The court concluded that Sheppard’s allegations were sufficient to state a claim 24 of discrimination, citing the Seventh Circuit in support of its conclusion: 25 26 27 [I]n many straightforward cases, it will not be any more difficult today for a plaintiff to meet [her] burden than it was before the [Supreme] Court's recent decisions [in Iqbal and Twombly ]. A plaintiff who believes that she has been ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 9 1 2 3 4 5 6 7 8 passed over for a promotion because of her sex will be able to plead that she was employed by Company X, that a promotion was offered, that she applied and was qualified for it, and that the job went to someone else. That is an entirely plausible scenario, whether or not it describes what ‘really’ went on in [the] plaintiff's case. Id. (quoting Swanson v. Citibank, N.A., 614 F.3d 400, 404–05 (7th Cir. 2010)). Likewise, Macon’s allegation that she was paid less than similarly situated male co-workers suggests that the male co-workers were doing similar work, but were paid more. These allegations are sufficient to state a plausible claim of gender discrimination. C. Retaliation under the WLAD The WLAD prohibits an employer from taking an adverse employment action 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 against an employee based on protected conduct. RCW 49.60.210; Hines v. Todd Pac. Shipyards Corp., 127 Wn. App. 356, 374, 112 P.3d 522 (2005). To establish a prima facie case of retaliation, plaintiff must demonstrate that (1) she engaged in statutorily protected activity; (2) defendants took some adverse employment action against her; and (3) there is a causal connection between the protected activity and the discharge. Corville v. Cobarc Servs., Inc., 73 Wn. App. 433, 439, 869 P.2d 1103 (1994). Macon alleges that she was terminated in retaliation for filing an EEOC complaint. UPS argues that Macon has failed to allege a causal connection between the EEOC filing in February 2009 and her termination ten months later. Proximity in time between the protected activity and the discharge may suggest retaliatory motivation. Estevez v. Faculty Club of Univ. of Wash., 129 Wash. App. 774, 799, 120 P.3d 579 (2005). However, a court may not infer causation from temporal proximity unless the time between the employer's knowledge of the protected activity and the adverse employment action is very close. Manatt v. Bank of Am., 339 F.3d 792, 802 (9th Cir. 2003) (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (noting that a lapse of even three or four months is too long to infer causation)). Macon argues that she was terminated only one month after the EEOC issued a right to sue letter, thus demonstrating that she was terminated in retaliation for filing the ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 10 1 EEOC complaint. However, Macon must show proximity between the protected activity 2 and her termination. The issuing of the right to sue letter by the EEOC is not protected 3 activity. Clark County Sch. Dist., 532 U.S. at 273. Macon relies entirely on temporal 4 proximity to establish causation. Macon’s termination ten months after she filed an 5 EEOC charge, on its own, does not indicate a causal connection sufficient to support a 6 claim of retaliation. Accordingly, the court GRANTS UPS’s motion to dismiss plaintiff’s retaliation 7 8 claim with leave to amend. 9 D. 10 Wrongful Discharge in Violation of Public Policy To state a claim for wrongful discharge in violation of public policy, a plaintiff 11 must allege four factors. The plaintiff must allege (1) that a clear public policy exists (the 12 clarity element); (2) that discouraging the conduct in which he or she engaged would 13 jeopardize the public policy (the jeopardy element); (3) that the public policy-linked 14 conduct caused the dismissal (the causation element); and (4) that the defendant has not 15 offered an overriding justification for the dismissal (the absence of justification element). 16 Cudney v. ALSCO, Inc., 172 Wash. 2d 524, 529, 259 P.3d 244 (2011) (italics and 17 brackets omitted). 18 Macon alleges wrongful discharge in violation of public policy based on taking 19 medical leave. Dkt. #13 ¶ 75. Macon also alleges that she was terminated for reporting 20 drug use by co-workers and supervisors in the workplace and for requesting 21 accommodation. Dkt # 13 ¶¶ 75-76. UPS argues that Macon has failed to establish the 22 jeopardy and causation elements of wrongful discharge in violation of public policy for 23 these allegations. 24 A claim of public policy-based wrongful discharge is a narrow exception to 25 Washington's general rule of employment at will. Thompson v. St. Regis Paper Co., 102 26 Wash. 2d 219, 232, 685 P.2d 1081 (1984). Washington statutes and case law are the 27 primary sources of Washington public policy. Sedlacek v. Hillis, 145 Wash. 2d 379, 388, ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 11 1 36 P.3d 1014 (2001). Washington courts have generally recognized the public policy 2 exception when an employer terminates an employee as a result of his or her (1) refusal 3 to commit an illegal act; (2) performance of a public duty or obligation; (3) exercise of a 4 legal right or privilege; or (4) in retaliation for reporting employer misconduct. Danny v. 5 Laidlaw Transit Servs., Inc., 165 Wash. 2d 200, 208, 193 P.3d 128 (2008). 6 In order to plead the jeopardy element, a plaintiff must allege “that he or she 7 ‘engaged in particular conduct, and the conduct directly relates to the public policy, or 8 was necessary for the effective enforcement of the public policy.’” Korslund v. Dyncorp 9 Tri–Cities Services, Inc., 156 Wash. 2d 168, 181–82, 125 P.3d 119 (2005) (quoting 10 Hubbard v. Spokane County, 146 Wash. 2d 699, 713, 50 P.3d 602 (2002)). The plaintiff 11 must allege “that other means of promoting the public policy are inadequate and that the 12 actions the plaintiff took were the ‘only available adequate means’ to promote the public 13 policy.” Danny, 165 Wash. 2d at 222 (emphasis in original). 14 Macon alleges wrongful discharge in violation of public policy based on taking 15 medical leave. Macon relies on Roberts v. Dudley, 140 Wash. 2d 58, 71, 993 P.2d 901 16 (2000) to argue that a statute establishes an actionable public policy even if the conduct 17 complained of does not fall within the purview of the statute.4 In Roberts, the plaintiff 18 sued her employer for gender discrimination after she was terminated because she was 19 pregnant. Id. at 61. The court held that although the employer was exempt under the 20 WLAD because it had fewer than eight employees, the statute expresses a strong public 21 policy protecting the right of all inhabitants of the state to be free from gender 22 discrimination. Id. at 68-9. 23 As discussed below, Macon may not recover under FMLA or WFLA because she 24 was not employed with UPS for the minimum twelve months before taking leave. 25 Nevertheless, WFLA and FMLA both express a clear public policy of protecting an 26 27 4 Roberts addressed the clarity element and did not address jeopardy or causation. ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 12 1 employee’s right to reasonable medical leave. RCW 49.78.010 (The legislature “declares 2 it to be in the public interest to provide reasonable leave for medical reasons.”); 29 C.F.R. 3 § 825.101 (“FMLA is intended to allow employees to balance their work and family life 4 by taking reasonable unpaid leave for medical reasons.”). Because the public policy 5 expressed in these statutes establishes a right to take reasonable medical leave, Macon’s 6 conduct of taking medical leave directly relates to clear public policy. Taking medical 7 leave is the intended means of promoting the public policy. Further, Macon’s alleged 8 termination for taking reasonable medical leave would discourage others from exercising 9 this right. See Gardner v. Loomis Armored Inc., 128 Wash. 2d 931, 946, 913 P.3d 377 10 (1996). 11 However, Macon alleges only that she took medical leave and that she was 12 terminated for taking such leave. Dkt. # ¶¶41, 79, 80. Macon does not allege a clear 13 public policy in her complaint. Nor does she include facts sufficient to allege that 14 “discouraging the conduct in which he or she engaged would jeopardize the public 15 policy,” as is required to plead the jeopardy element of a wrongful discharge claim. 16 Accordingly, Macon’s allegations are not sufficient to allege wrongful discharge based 17 on taking medical leave. 18 Macon next asserts that she was terminated for reporting drug use in the 19 workplace. The Washington State Supreme Court recently addressed a similar claim in 20 Cudney v. ALSCO, Inc., 172 Wash. 2d 524, 259 P.3d 244 (2011). There, the plaintiff 21 claimed he was terminated in retaliation for reporting that the general manager of his 22 branch was intoxicated while driving a company car during working hours. Id. at 526. 23 The court rejected the claim, holding that the public policies of promoting workplace 24 safety and protecting the public from drunk drivers were adequately protected by the 25 Washington Industrial Safety and Health Act (WISHA) and state drunk driving laws. Id. 26 at 530-31. The court’s holding on the latter issue is particularly instructive: 27 ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 13 1 2 3 4 5 6 For Cudney to succeed in this claim, he must prove that telling his manager about Bartich’s drunk driving is the “only available adequate means” to promote the public policy of protecting the public from drunk driving. [Danny, 165 Wash. 2d at 222]. For this to be true, the criminal laws, enforcement mechanism, and penalties all have to be inadequate to protect the public from drunk driving. Cudney admits that he did not call 911 and inform the police of Bartich’s drunk driving. . . . There is a huge legal and police machinery around our state designed to address this very problem. It is very hard to believe that the “only available adequate means” to protect the public from drunk driving was for Cudney to tell his manager about Barich’s drunk driving. 7 Id. at 536-37. 8 The court noted that Cudney did not report the drunk driving to the police, finding 9 that “we might have a different case if Cudney acted pursuant to or in service of 10 enforcement of the state’s DUI laws and faced termination for that. There, Cudney might 11 be able to argue that his action ‘was necessary for the effective enforcement of the public 12 policy.’” Id. at 537 n. 4 (quoting Korslund, 156 Wash. 2d at 181). The court held that 13 “[u]nder a strict adequacy analysis, Cudney simply cannot show that having law 14 enforcement do its job and enforce DUI laws is an inadequate means of promoting the 15 public policy.” Id. at 537. 16 Likewise, Macon cannot allege that reporting drug use in the workplace was the 17 “only available adequate means” to promote the public policy of eliminating the illegal 18 sale and consumption of controlled substances. Because, as in Cudney, “[t]here is a huge 19 legal and police machinery around our state designed to address this very problem,” 20 Macon cannot allege that her internal report to her superiors of drug activity in the 21 workplace furthers public policy. Like Cudney, Macon did not report her observations to 22 the police and she was not terminated for assisting law enforcement in furtherance of 23 public policy. 24 Macon argues that because Washington law does not otherwise provide for a claim 25 of retaliation for whistle blowing, “there is no other alternative” means of protecting 26 public policy. Id. But, as the Cudney court emphasized, “it is the public policy that must 27 ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 14 1 be promoted, not [the plaintiff’s] individual interests. Id. at 538 “The other means of 2 promoting the public policy need not be available to a particular individual so long as the 3 other means are adequate to safeguard the public policy.” Id. (quoting Hubbard, 146 4 Wash. 2d at 717). 5 Macon also alleges that it is public policy in Washington to protect those with 6 disabilities, even where they are not protected by statutes such as the WLAD or FMLA. 7 Dkt. # 13 ¶ 75. Macon’s request for accommodation is protected under the WLAD. 8 Because the WLAD provides a cause of action, Macon has not shown that the WLAD is 9 “inadequate to protect public policy.” See Cudney, 172 Wash. 2d at 530-31. 10 As to the causation element, Macon cannot show a causal link for reporting drug 11 activity or taking medical leave. Macon reported workplace drug activity to her 12 employer in April 2008. Dkt. # 13 ¶ 19. She took medical leave in August 2008. Dkt. # 13 13 ¶ 41. She was terminated in December 2009. Dkt. # 13 ¶ 49. As discussed above, a 14 court may not infer causation unless the time between the employer’s knowledge of the 15 protected activity and the termination is very close. Clark County Sch. Dist., 532 U.S. at 16 273. A gap of twenty months between Macon’s report and her termination, and a gap of 17 sixteen months between taking the medical leave and the termination, without any other 18 allegations, does not provide a sufficient causal link. 19 Because Macon cannot allege wrongful discharge in violation of public policy 20 based on reporting drug activity or requesting accommodation, the court GRANTS UPS’s 21 motion to dismiss the claim on those bases without leave to amend. The court also 22 GRANTS UPS’s motion to dismiss plaintiff’s claim for wrongful discharge in violation 23 of public policy based on taking medical leave with leave to amend the complaint. 24 E. FMLA/WFLA Claims 25 To be considered eligible under FMLA or WFLA, a person must be employed (i) 26 for at least twelve months by the employer with respect to whom leave is requested under 27 and (ii) for at least one thousand two hundred fifty hours of service with the employer ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 15 1 during the previous twelve-month period. RCW 49.78.020(4)(a); 29 C.F.R. § 825.110(a). 2 In her complaint, Macon alleges that she began work with UPS in November 2007 and 3 she went on leave on August 28, 2008. Dkt. # 13 ¶¶ 11, 41. Macon was employed with 4 UPS for nine months before she went on medical leave. Because she was not employed 5 with UPS for at least twelve months, she was not eligible for protected leave under 6 FMLA and WFLA. 7 In the alternative, Macon alleges that UPS failed to give her notice that she was 8 not eligible for leave under FMLA.5 In her complaint, Macon alleges “UPS failed to 9 follow the notice requirements set forth in 29 CFR 825, § 825.300 and therefore is not 10 entitled to a limitation of 12 weeks of FMLA leave, nor any other requirement of the 11 employee under the FMLA.” Dkt. # 13 ¶ 93. 12 When an employee expresses an interest in exercising rights under FMLA, an 13 employer has an obligation to provide the employee with notice of eligibility. 29 C.F.R. 14 § 825.300(b)(1). The regulation explicitly provides that “[f]ailure to follow the notice 15 requirements set forth in this section may constitute interference with, restraint, or denial 16 of the exercise of an employee's FMLA rights.” 29 C.F.R. § 825.300(e). Nevertheless, 17 an employee must show prejudice in the form of interference with or restraint or denial of 18 the ability to exercise FMLA rights. See Ragsdale v. Wolverine World Wide, Inc., 535 19 U.S. 81, 89 (2002). A technical violation is not sufficient to entitle an employee to any 20 recovery. 29 C.F.R. § 825.300(e) (“An employer may be liable for compensation and 21 benefits lost by reason of the violation, for other actual monetary losses sustained as a 22 direct result of the violation, and for appropriate equitable or other relief, including 23 employment, reinstatement, promotion, or any other relief tailored to the harm 24 suffered.”). 25 26 27 5 Macon does not allege a similar violation under WFLA. ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 16 1 Because Macon alleges a violation but she does not allege prejudice, her claim 2 fails. At the time Macon took leave, she had worked for UPS for nine months and was 3 three months short of eligibility. The court cannot reasonably infer from the allegations 4 in the complaint that Macon would have waited three months to take leave in order to be 5 eligible for FMLA. 6 Given the plaintiff’s allegations as to the violation of FMLA and WFLA, the court 7 finds that any future amendments would be futile. Accordingly, the court GRANTS 8 defendant’s motion to dismiss plaintiff’s claims under FMLA and WFLA without leave 9 to amend. As to Macon’s FMLA notice claim, the court GRANTS defendant’s motion to 10 dismiss with leave to amend. 11 12 IV. CONCLUSION For all of the foregoing reasons, the court GRANTS in part and DENIES in part 13 UPS’s motion to dismiss under Rule 12(b)(6). The court GRANTS UPS’s motion to 14 dismiss Macon’s claims for retaliation, wrongful termination in violation of public policy 15 based on taking medical leave, and violation of the notice requirement under FMLA with 16 leave to amend. The court GRANTS UPS’s motion to dismiss Macon’s claims for 17 wrongful discharge in violation of public policy based on reporting drug activity and 18 requesting accommodation, and violation of FMLA and WFLA without leave to amend. 19 The court DENIES UPS’s motion to dismiss Macon’s claims for disability disparate 20 treatment, failure to accommodate, and gender discrimination. 21 22 23 24 Dated this 5th day of November, 2012. A The Honorable Richard A. Jones United States District Judge 25 26 27 ORDER GRANTING IN PART AND DENYING IN PART UPS’S MOTION TO DISMISS- 17

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.