Nguyen v. The Boeing Company, No. 2:2015cv00793 - Document 41 (W.D. Wash. 2016)
Court Description: ORDER granting in part and denying in part defendant's 31 Motion to Dismiss for Failure to State a Claim; plaintiff to file an amended complaint within 21 days; denying plaintiff's 37 Motion for Relief by Judge Richard A Jones.(RS) cc plaintiff
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Nguyen v. The Boeing Company Doc. 41 HONORABLE RICHARD A. JONES 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 MINHNGA NGUYEN, 9 10 11 Plaintiff, CASE NO. C15-793RAJ v. ORDER THE BOEING COMPANY, 12 Defendant. 13 I. INTRODUCTION 14 15 This matter comes before the Court on Defendant Boeing Company’s 16 (“Defendant”) Motion to Dismiss Plaintiff’s Second Amended Complaint. Dkt. # 31. 17 For the reasons set forth below, the Court GRANTS in part and DENIES in part 18 Defendant’s Motion. Dkt. # 31. Plaintiff has also filed a pleading entitled “Motion to 19 Grant Plaintiff Relief.” Dkt. # 37. The Court STRIKES this pleading to the extent that it 20 and its corresponding reply are improper surreplies and DENIES Plaintiff’s apparent 21 request for an expedited trial or discovery schedule. Dkt. # 37 & 40. II. BACKGROUND 22 23 Plaintiff Minhnga Nguyen (“Plaintiff”) has repeated substantially similar 24 allegations throughout this case. Briefly, Defendant hired Plaintiff in 1991 and 25 terminated her position as a systems engineer in November 2014. See Dkt. # 29 (“Am. 26 Compl.”) at 2. As a result, Plaintiff brings a host of employment discrimination claims. 27 28 ORDER – 1 Dockets.Justia.com 1 Id. at 9-11. To support her claims, Plaintiff recites several instances of behavior that she 2 perceived to be discriminatory. 3 In March 2014, Plaintiff received a Corrective Action Memorandum (“CAM”) for 4 failure to follow management direction, a year after she had been rated by her manager 5 Dorothy Todd at “lowest retention 3” and Plaintiff had subsequently emailed other 6 managers about her perceived unequal treatment. See id. at 2. 7 In April 2014, Ms. Todd was transferred and Plaintiff was assigned to Gary 8 Weber. Id. at 3. Defendant promoted Keith Sellers to be Plaintiff’s senior manager. Id. 9 A month later, Mr. Weber told Plaintiff during a performance review that he could 10 11 “easily get a drafter to replace [Plaintiff].” Id. In July 18, 2014, Plaintiff’s eyeglasses were stolen at work and she felt sick. Id. 12 She emailed her acting supervisor that she needed to take time off because she felt 13 stressed. Id. On July 21, 2014, Mr. Sellers called Plaintiff at her home. Id. Plaintiff did 14 not return his calls and she was subsequently accused of not respecting Mr. Sellers. Id. 15 Her laptop was also confiscated and she was no longer permitted to work off-site like 16 other members of her group. Id. Plaintiff was also assessed a five day suspension for 17 failing to accurately record her time. See id. at 15. 18 Plaintiff was again disciplined – this time with a written warning – for failing to 19 park in a designated parking space on October 15, 2014. See id. at 4, 16. Plaintiff was 20 given a five day suspension for again failing to park in a designated parking space on 21 November 20, 2014. Id. at 19. She was discharged the next day for failing to follow 22 management direction. See id. at 20. 23 Plaintiff subsequently filed a charge of discrimination with the EEOC in February 24 2015. See id. at 29. The EEOC ultimately was unable to conclude that any statutory 25 violations had occurred and issued Plaintiff a right to sue letter as a result dated August 26 31, 2015. See id. at 28. 27 28 ORDER – 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 III. LEGAL STANDARD Fed. R. Civ. P. 12(b)(6) permits a court to dismiss a complaint for failure to state a claim. The rule requires the court to assume the truth of the complaint’s factual allegations and credit all reasonable inferences arising from those allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). A court “need not accept as true conclusory allegations that are contradicted by documents referred to in the complaint.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The plaintiff must point to factual allegations that “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint avoids dismissal if there is “any set of facts consistent with the allegations in the complaint” that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A court typically cannot consider evidence beyond the four corners of the complaint, although it may rely on a document to which the complaint refers if the document is central to the party’s claims and its authenticity is not in question. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). A court may also consider evidence subject to judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Where a plaintiff proceeds pro se, the court must construe his “complaints liberally even when evaluating it under the Iqbal standard.” Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1011 (9th Cir. 2011) (citing Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)). “Furthermore, ‘[l]eave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts, and should be granted more liberally to pro se plaintiffs.’” Id. (quoting McQuillion v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 2004)). 24 25 26 27 28 ORDER – 3 IV. ANALYSIS 1 a. Disparate Treatment Claims 2 3 4 The Court begins with Plaintiff’s apparent disparate treatment based claims pursuant to Title VII, WLAD, and § 1981. Plaintiff contends that she was discriminated against on the basis of her sex, race, age, and national origin. See Am. Compl. at 2. 5 6 7 8 9 10 11 12 Because Washington’s discrimination laws substantially parallel federal laws, it is often appropriate to analyze state and federal discrimination claims together. See Little v. Windermere Relocation, Inc., 301 F.3d 958, 966 (9th Cir. 2001) (citing Payne v. Children’s Home Soc. of Wash., 892 P.2d 1102, 1105 (Wash. 1995)); Alonso v. Quest Commc’ns Co., LLC, 315 P.3d 610, 616 n.11 (Wash. Ct. App. 2013) (citing Xieng v. Peoples Nat’l Bank of Wash., 844 P.2d 389, 392 (Wash. 1993)); Knight v. Brown, 797 F. Supp. 2d 1107, 1133 (W.D. Wash. 2011) (applying same analysis to claims under Title VII, § 1981, and WLAD). 13 14 15 16 17 18 19 20 21 22 Generally speaking, “[a] plaintiff may establish a prima facie case of disparate treatment by showing (1) that he is a member of a protected class; (2) that he was qualified for his position and performing his job satisfactorily; (3) that he experienced an adverse employment action; and (4) that ‘similarly situated individuals outside [his] protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.’” Knight, 797 F. Supp. 2d at 1125 (quoting Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)); see also Matson v. United Parcel Serv., Inc., 872 F. Supp. 2d 1131, 1137 (W.D. Wash. 2012) (citing Kang v. U. Lim Am., Inc., 296 F.3d 810, 818 (9th Cir. 2002); Davis v. W. One Auto Grp., 166 P.3d 807, 812 (Wash. Ct. App. 2007)). 1 23 24 25 26 27 28 1 Alternatively, Plaintiff could rely on direct or circumstantial evidence of discriminatory intent. See Hedenburg v. Aramark Am. Food Servs., Inc., 476 F. Supp. 2d 1199, 1205-06 (W.D. Wash. 2007) (quoting Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2004)). Plaintiff does not allege any facts showing discriminatory intent. ORDER – 4 1 Defendant contends 2 that Plaintiff’s disparate treatment claims should be 2 dismissed because she has not sufficiently alleged that she was competently performing 3 her job or that any other employees outside her protected class were treated more 4 favorably. See Dkt. # 31 at 7-8. Plaintiff does not directly address any of these 5 arguments, instead largely repeating the same factual allegations that she has previously 6 presented to the Court. See Dkt. # 35. Contrary to Defendant’s contentions, Plaintiff has sufficiently alleged that she was 7 8 competently performing her job. See Am. Compl. at 2 (“Throughout her employment 9 with Boeing, [Plaintiff] performed her assigned jobs well”). To be sure, other allegations 10 or documents attached to her complaint contradict this statement by showing that Plaintiff 11 continually violated Defendant’s policies, but the Court must accept all factual 12 allegations as true at this juncture. See Sheppard v. David Evans & Assoc., 694 F.3d 13 1045, 1049-50 (9th Cir. 2012) (holding that allegations that plaintiff’s “‘performance was 14 satisfactory or better’ and that ‘she consistently received good performance reviews’” 15 were sufficient). Plaintiff’s complaint fails, however, because she has not sufficiently alleged a 16 17 legally cognizable comparator. “Plaintiff must allege sufficient facts that, accepted as 18 true, could demonstrate that a person outside of his protected class but similarly situated 19 in all other material respects was treated more favorably.” Gamble v. Pac. Nw. Reg’l 20 Council of Carpenters, No. 2:14-CV-00455RSM, 2015 WL 402782, at *3 (W.D. Wash. 21 Jan. 29, 2015) (citing Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2008)). Threadbare 22 and conclusory allegations that an employer favors a particular group are insufficient to 23 satisfy the fourth element for disparate treatment. See id. (dismissing disparate treatment 24 2 25 26 27 28 Perplexingly, Defendant argues that Plaintiff’s complaint should be dismissed because her allegations “are unsupported by any declaration, document, or other shred of evidence.” Dkt. # 31 at 8. Courts ordinarily may not examine evidence outside the four corners of the complaint in evaluating a motion to dismiss for failure to state a claim. See Marder, 450 F.3d at 448. And, as with facial attacks on subject matter jurisdiction, plaintiffs are not required to provide evidence in response to such motions to dismiss. Cf. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). ORDER – 5 1 claims for failing to identify similarly situated employees who were treated more 2 favorably); see also Gamble v. Pac. Nw. Reg'l Council of Carpenters, No. C14-455 RSM, 3 2015 WL 3442561, at *3 (W.D. Wash. May 28, 2015) (dismissing same claims with 4 prejudice). 5 Plaintiff does not provide any comparator for her disparate treatment claims 6 beyond simply alleging that “male employees not of her race” (Am. Compl. at 3), “others 7 who were not of Plaintiff’s race, national origin, age and gender,” (Am. Compl. at 4) or 8 “male American employees in same group” (Am. Compl. at 4) were treated more 9 favorably. Crucially, Plaintiff has not identified any other individuals who “have similar 10 jobs and display[ed] similar conduct.” 3 Vasquez, 349 F.3d at 641 (citing Ward v. Procter 11 & Gamble Paper Prods. Co., 111 F.3d 558, 560-61 (8th Cir. 1997)). Plaintiff does not 12 allege that other individuals with a similar disciplinary record as hers were not terminated 13 or disciplined in a similar manner. See Espinoza v. Corvington, No. 2:10-CV-03213 14 JAM, 2012 WL 639313, at *1 (E.D. Cal. Feb. 27, 2012) (holding that plaintiff had not 15 sufficiently alleged that a similarly situated individual received more favorable treatment 16 where there were no allegations that plaintiff and named comparator exhibited similar 17 conduct). The Court DISMISSES Plaintiff’s claims for disparate treatment as insufficiently 18 19 pleaded at this time. Nevertheless, because this is the first time that the Court has 20 reached the merits of Plaintiff’s allegations, it will grant her leave to amend. In order to 21 sufficiently plead her claim, Plaintiff must provide sufficient factual allegations of 22 comparators – individuals who have similar jobs and displayed similar conduct. 23 24 25 26 3 27 Perhaps the closest Plaintiff comes is attaching the affidavit of Ted Yan, who apparently was an engineer who worked with Plaintiff. See Am. Compl. at 30. However, Mr. Yan’s statements do not indicate that he ever engaged in any of the activity Plaintiff claims she was disciplined for. 28 ORDER – 6 1 b. Hostile Work Environment Claims 2 The Court turns to Plaintiff’s hostile work environment claims pursuant to Title 3 VII and WLAD. Plaintiff appears to allege that she was subject to a hostile work 4 environment on account of her race, age, sex, and national origin. See Am. Compl. at 9. 5 To prevail on such a claim, Plaintiff must show: (1) that she was subjected to 6 verbal or physical conduct based on her protected characteristic; (2) that the conduct was 7 unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the 8 conditions of the plaintiff’s employment and create an abusive work environment. See 9 Vasquez, 349 F.3d at 642; see also Knight, 797 F. Supp. 2d at 1131 (analyzing Title VII, 10 11 § 1981, and WLAD hostile work environment claims together). Defendant contends that Plaintiff has not sufficiently alleged the first and third 12 elements. See Dkt. # 31 at 8; Dkt. # 36 at 5. Again, Plaintiff does not directly address 13 these issues. The Court agrees with Defendant and finds that Plaintiff has not sufficiently 14 alleged a hostile work environment claim. 15 First, Plaintiff simply has not alleged any facts demonstrating that she was 16 subjected to verbal or physical conduct based on her sex, race, or national origin. 17 Plaintiff alleges several instances of conduct, but none of them reference her race, 18 national origin, age, or sex. The only clear instance of verbal conduct, for example, is 19 when Mr. Weber told Plaintiff during a performance review that he could “easily get a 20 drafter to replace” her. See Am. Compl. at 3. Beyond Plaintiff’s speculation, there is 21 nothing tying this language to any of her protected class traits. 22 Second, Plaintiff has not alleged sufficient facts to show that the conduct was 23 severe or pervasive enough to constitute a hostile work environment. Plaintiff alleges 24 just a few incidents of conduct prior to her termination – she had an insulting 25 performance review, she received two phone calls on a sick day, had her laptop seized 26 and remote working privileges revoked, and was not permitted to flex her time. See id. at 27 3-4. Beyond the fact that none of that conduct appears directed at Plaintiff’s protected 28 ORDER – 7 1 class traits (beyond her speculative say-so), they also fall far short of the level necessary 2 to violate Title VII. See Vasquez, 349 F.3d at 642-43; see also Henry v. Regents of the 3 Univ. of Cal., 37 F. Supp. 3d 1067, 1085 (N.D. Cal. 2014) (“In general, the Ninth Circuit 4 has found that such ‘isolated’ incidents, occurring sporadically over a long period of 5 time, are not severe or pervasive enough to alter the conditions of employment.”). 6 Accordingly, the Court will DISMISS Plaintiff’s hostile work environment 7 claims. However, because this is the first time the Court has considered the merits of 8 Plaintiff’s claim and because Plaintiff could potentially cure the deficiencies through 9 amendment, the Court dismisses these claims with leave to amend. 10 c. Retaliation Claims 11 Plaintiff also alleges a claim for retaliation. See Am. Compl. at 10. As best as the 12 Court can tell, Plaintiff alleges that she was terminated in November 2014 in retaliation 13 for an EEOC complaint she made in October 2014. See id. at 2. Plaintiff also alleges 14 retaliation for failing to return Mr. Sellers’ calls in August 2014 and for refusing to 15 release engineering drawings in March 2014. See id. at 2-3. 16 Courts commonly consider retaliation claims brought under Title VII and WLAD 17 together. See Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065 (9th Cir. 2003) (citing 18 Little v. Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002); Graves v. Dep’t 19 of Game, 887 P.2d 424, 428 (Wash. Ct. App. 1994)). To make out a prima facie case of 20 retaliation, Plaintiff must show that “(1) she engaged in a protected activity, (2) she 21 suffered an adverse employment action, and (3) there was a causal link between her 22 activity and the employment decision.” Id. (quoting Raad v. Fairbanks N. Star Borough 23 Sch. Dist., 323 F.3d 1185, 1196-97 (9th Cir. 2003)). 24 Defendant contends that Plaintiff has not alleged any causal link between the 25 October 2014 discrimination complaint and her November 2014 termination. See Dkt. # 26 31 at 10. “A causal link can be shown by direct evidence or inferred from circumstantial 27 evidence such as the temporal proximity between the protected activity and the 28 ORDER – 8 1 employment decision and whether the employer knew that the employee engaged in 2 protected activities.” Arthur v. Whitman Cty., 24 F. Supp. 3d 1024, 1035 (E.D. Wash. 3 2014) (citing Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)); see also Thomas 4 v. City of Beaverton, 379 F.3d 802, 812 (9th Cir. 2004) (quoting Villiarimo v. Aloha 5 Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002)) (“The causal link between a 6 protected activity and the alleged retaliatory action ‘can be inferred from timing alone’ 7 when there is a close proximity between the two.”)). Plaintiff appears to sufficiently allege a causal link between her engagement in 8 9 protected activity4 and her subsequent discharge. Plaintiff filed a discrimination 10 complaint in October 2014 (see Am. Compl. at 18) and was discharged a month later 11 (Am. Compl. at 2). The one month span between Plaintiff’s protected activity – 12 submitting the October 2014 EEOC complaint – and the allegedly retaliatory conduct – 13 her termination – is sufficiently close in time to raise the inference of retaliation. See 14 Trizuto v. Bellevue Police Dep’t, 983 F. Supp. 2d 1277, 1291-92 (W.D. Wash. 2013) 15 (holding that two month span between complaint and alleged retaliatory conduct raised 16 inference of retaliation). 17 Plaintiff does not, however, explain how her other actions – failing to return Mr. 18 Sellers’ calls or refusing to release engineering drawings – constitute protected activity 19 under Title VII or WLAD. “An employee engages in protected activity when she 20 opposes an employment practice that either violates Title VII or that the employee 21 reasonably believes violates that law.” Westendorf v. W. Coast Contractors of Nev., Inc., 22 712 F.3d 417, 422 (9th Cir. 2013) (citing Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 23 2006)); see Alonso, 315 P.3d at 620 (citing Short v. Battle Ground Sch. Dist., 279 P.3d 24 25 26 27 28 4 Defendant does not address this point, but Plaintiff has sufficiently alleged that she engaged in protected activity by complaining that her supervisor violated Title VII. See E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 963 (9th Cir. 2009) (citing Trent v. Valley Elec. Ass’n, Inc., 41 F.3d 524, 526 (9th Cir. 1994)). ORDER – 9 1 902, 911 (Wash. Ct. App. 2012)). Plaintiff’s refusal to call Mr. Sellers or to release 2 certain drawings does not relate to any activity protected by the relevant statutes. 3 The Court will DENY Defendant’s Motion as to Plaintiff’s allegations of 4 retaliation relating to the October 2014 discrimination complaint. However, the Court 5 also GRANTS Defendant’s Motion as to Plaintiff’s claims of retaliation relating to Mr. 6 Sellers’ calls and to her refusal to release drawings. Still, the Court suggests that Plaintiff 7 clarify the scope of her claim in any amended pleading. 8 d. Wrongful Termination in Violation of Public Policy 9 Plaintiff also brings a claim for wrongful discharge in violation of public policy. 10 See Am. Compl. at 10. Plaintiff appears to allege that Defendant violated public policy in 11 terminating her for refusing to release engineering drawings that she considered 12 inappropriate to release. See id. 13 In order to state a claim for wrongful termination in violation of public policy, a 14 plaintiff must allege facts showing four elements: “(1) the existence of a clear public 15 policy (the clarity element); (2) that discouraging the conduct in which he or she engaged 16 would jeopardize the public policy (the jeopardy element); (3) that the public-policy- 17 linked conduct caused the dismissal (the causation element); and (4) that the defendant 18 has not offered an overriding justification for the dismissal (the absence of justification 19 element).” Armijo v. Yakima HMA, LLC, 868 F. Supp. 2d 1129, 1134 (E.D. Wash. 2012) 20 (quoting Cudney v. ALSCO, Inc., 259 P.3d 244, 246 (Wash. 2011)). Furthermore, 21 plaintiffs must show that a stated public policy has been contravened, such as “when an 22 employer terminates an employee as a result of his or her (1) refusal to commit an illegal 23 act, (2) performance of a public duty or obligation, (3) exercise of a legal right or 24 privilege, or (4) in retaliation for reporting employer misconduct.” Id. (citing Danny v. 25 Laidlaw Transit Servs., Inc., 193 P.3d 128, 132 (Wash. 2008)). 26 Defendant contends that Plaintiff’s claim fails because she does not identify any 27 public policy that was violated. See Dkt. # 31 at 12. Plaintiff does not respond to this 28 ORDER – 10 1 argument and the Court could not identify any public policy at issue. At best, her 2 complaint suggests that her wrongful termination claim rests upon the same ultimate 3 theory as her retaliation or disparate treatment claims. If so, her interests are likely 4 already protected by these other statutes, rendering her wrongful termination claim 5 superfluous. See Armijo, 868 F. Supp. 2d at 1134-35 (holding that WLAD and 6 Washington’s Law Against Retaliatory Discharge could not support another claim for 7 wrongful termination because plaintiff had not shown they were inadequate to protect 8 public policy); see also Lee v. Rite Aid Corp., 917 F. Supp. 2d 1168, 1175-76 (E.D. 9 Wash. 2013) (finding that wrongful discharge claim was barred because Washington’s 10 Family Leave Act (“WFLA”), WLAD, and the federal Family and Medical Leave Act 11 (“FMLA”) sufficiently protected the public policy against pregnancy related employment 12 discrimination). 13 Defendant also argues that Plaintiff has not sufficiently alleged a causal link 14 between her alleged public policy linked conduct and the discharge. See Dkt. # 31 at 12. 15 The Court agrees. As best as the Court could tell, Plaintiff refused to release engineering 16 drawings in March 2014 but was terminated in November 2014, more than eight months 17 later. See Am. Compl. at 2. That length of time does not appear to give rise to any 18 inference of causation, at least in the retaliation context. See Hedenburg, 476 F. Supp. 2d 19 at 1209 (holding that plaintiff’s wrongful discharge and retaliation claims failed because 20 she could not show a causal link where protected activity occurred more than seven 21 months before the adverse employment action). 22 The Court will DISMISS this claim. Given Plaintiff’s failure to directly address 23 this (or any other claim) in her opposition, the Court is skeptical of whether this claim 24 could be cured through further amendment. Nevertheless, because this is the first time 25 the Court has considered the merits of Plaintiff’s claims, the Court will grant Plaintiff 26 leave to amend this claim. 27 28 ORDER – 11 1 e. Family Medical Leave Claims 2 Plaintiff also contends that Defendant violated the FMLA and the WFLA. See 3 Am. Compl. at 10. Plaintiff appears to contend that Defendant refused to grant Plaintiff 4 leave to care for her father. See id. Plaintiff’s allegations show that she actually received 5 approval to “flex” her work schedule in order to care for her father. See id. at 4 (“On 6 10/14/14 plaintiff Nguyen asked her supervisor Gary Weber, to allow her to flex her 7 work schedule to a ‘9/80’ schedule with Wednesday 10/22/14 off only once, to help her 8 old and ill dad. She got approval.”). 9 Given that Defendant approved Plaintiff’s request, it is unclear how Plaintiff could 10 have stated a claim for interference with her FMLA or WFLA benefits. See McDaniels v. 11 Grp. Health Co-op, 57 F. Supp. 3d 1300, 1316 (W.D. Wash. 2014) (quoting Sanders v. 12 City of Newport, 657 F.3d 772, 778 (9th Cir. 2011)) (outlining elements for FMLA 13 interference claim, including that employer must have denied plaintiff FMLA benefits to 14 which plaintiff as entitled); see also Crawford v. JP Morgan Chase NA, 983 F. Supp. 2d 15 1264, 1269 (W.D. Wash. 2013) (quoting Washburn v. Gymboree Retail Stores, Inc., No. 16 C11-822RSL, 2012 WL 5360978, at *7 (W.D. Wash. Oct. 30, 2012)) (holding that 17 WFLA mirrors FMLA and instructs to construe its provisions in a manner consistent with 18 similar provisions in the FMLA). 19 As such, the Court DISMISSES Plaintiff’s FMLA and WFLA claims. Because 20 this is the first time the Court has considered the merits of Plaintiff’s claims, the Court 21 will grant Plaintiff leave to amend this claim. However, the Court cautions Plaintiff that 22 unless she can identify an instance where Defendant actually denied her benefits to which 23 she was entitled under the FMLA or WFLA, her claims under these statutes will fail. 24 f. Failure to Accommodate Claim 25 Plaintiff further alleges a claim for failure to accommodate under the Americans 26 with Disabilities Act (“ADA”) and the WLAD. See Am. Compl. at 11. She contends 27 that Defendant violated these acts because she was not able to receive a “CAD” scan after 28 ORDER – 12 1 she had been terminated and for disciplining her for improperly using sick leave the week 2 after her eyeglasses were stolen. See id. She further alleges that she is disabled due to 3 her impaired vision. See id. 4 In order to state a claim for failure to accommodate under the ADA, Plaintiff 5 “must show that ‘(1) [he] is disabled within the meaning of the ADA; (2) [he] is a 6 qualified individual able to perform the essential functions of the job with reasonable 7 accommodation; and (3) [he] suffered an adverse employment action because of [his] 8 disability.’” Hotchkiss v. CSK Auto, Inc., 918 F. Supp. 2d 1108, 1123 (E.D. Wash. 2013) 9 (quoting Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 10 2012)). The showing under the WLAD is similar and requires plaintiffs to show “(1) that 11 he had a sensory, mental, or physical abnormality that substantially limited his or her 12 ability to perform the job; (2) that he was qualified to perform the essential functions of 13 the job in question; (3) that he gave his employer notice of the abnormality and its 14 accompanying substantial limitations; and (4) upon receiving notice, the employer failed 15 to affirmatively adopt measures that were available to and medically necessary to 16 accommodate the abnormality.” Id. (citing Riehl v. Foodmaker, Inc., 94 P.3d 930, 934 17 (Wash. 2004)). 18 Plaintiff has not adequately alleged any of the necessary elements. First, Plaintiff 19 does not appear to have sufficiently alleged a disability within the meaning of the ADA 20 as “ordinary eyeglasses or contact lenses . . . must be considered in determining whether 21 an impairment substantially limits a major life activity.” Rohr v. Salt River Project 22 Agriculture Improvement & Power Dist., 555 F.3d 850, 862 n.9 (9th Cir. 2009). In other 23 words, her eyeglasses must be considered in determining whether Plaintiff even has an 24 impairment for purposes of the ADA. Second, it is not entirely clear how Defendant 25 could have accommodated any disability a month after Plaintiff was terminated. See Am. 26 Compl. at 2, 11 (Plaintiff’s employment was terminated in November 2014 but she 27 sought a “CAD” scan in December 2014). Finally, Plaintiff does not allege that she 28 ORDER – 13 1 actually requested an accommodation for her impairment – instead, Plaintiff appears to 2 have requested time off because she “can’t work around thefts.” See id. at 14. 3 The Court expresses some skepticism as to whether Plaintiff can cure the 4 substantial deficiencies with this claim, but given Plaintiff’s pro se status and the fact that 5 the Court has not previously considered the merits of her claim, the Court will DISMISS 6 Plaintiff’s failure to accommodate claims with leave to amend. 7 g. Plaintiff’s Request for Expedited Discovery 8 Finally, the Court considers a group of requests Plaintiff filed as a “Motion to 9 Grant Plaintiff Relief and Expedite Subpoenas per civil Rule 8(b)1B.” Dkt. # 37. The 10 vast majority of this pleading simply repeats the same factual allegations that Plaintiff has 11 continuously presented to the Court. See id. at 1-10. The remainder is a one paragraph 12 request for expedited trial subpoenas or an expedited trial date. See id. at 11. Plaintiff’s 13 reply is functionally identical. See Dkt. # 40. 14 The portions of Plaintiff’s pleadings which simply repeat her factual allegations ad 15 nauseum or address the contents of Defendant’s Motion to Dismiss constitute an 16 improper surreplies, particularly as Plaintiff has not followed the procedures outlined in 17 the Court’s Local Rules. See Local Rules W.D. Wash. LCR 7(g). Surreplies are 18 permitted solely to strike material contained or attached in a reply brief and only if 19 certain timing and formatting requirements are met. See id. And Plaintiff did not comply 20 with any of these rules. 21 The portions of Plaintiff’s pleadings which request an expedited trial or discovery 22 schedule are DENIED because Plaintiff has not shown good cause. To the extent that 23 Plaintiff is seeking discovery, discovery is not permitted as the Parties have yet to confer 24 as required by Federal Rule of Civil Procedure 26(f). See Fed. R. Civ. P. 26(d)(1). 25 Plaintiff has not shown good cause to permit early discovery. See Semitool, Inc. v. Tokyo 26 Elec. Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002) (applying “good cause” standard to 27 requests for early discovery). Even beyond that, discovery in this matter is premature 28 ORDER – 14 1 given the substantial deficiencies in Plaintiff’s Amended Complaint. Trial in this matter 2 is even more premature, given that this case has not proceeded past the pleadings stage 3 and the Parties have yet to exchange discovery. V. CONCLUSION 4 5 For the reasons stated above, the Court GRANTS in part and DENIES in part 6 Defendant’s Motion to Dismiss. Dkt. # 31. Because it is possible that Plaintiff could 7 cure certain deficiencies in her complaint through amendment, the Court will DISMISS 8 her Amended Complaint with leave to amend. Plaintiff must file an amended complaint 9 addressing the deficiencies the Court has outlined within twenty-one (21) days of this 10 Order. The Court cautions Plaintiff that if she fails to cure the deficiencies in many of 11 her causes of action as outlined above, they will be dismissed. 12 Additionally, the Court DENIES Plaintiff’s “Motion to Grant Relief”. Dkt. # 37. 13 Although Plaintiff is proceeding pro se, she is “not excused from following court rules.” 14 Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1997). The Court advises 15 Plaintiff that as a pro se litigant, she is responsible for pursuing her claims, including 16 meeting court deadlines and complying with the Court’s local rules. She will find 17 resources for pro se parties, including the Court’s local rules, at the Court’s website, at 18 www.wawd.uscourts.gov. 19 20 DATED this 16th day of May, 2016. 21 23 A 24 The Honorable Richard A. Jones United States District Judge 22 25 26 27 28 ORDER – 15
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