1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Mar 26, 2024 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 ROBERT MILDES, a married man, 10 Plaintiff, No. 2:23-CV-00356-SAB 11 v. 12 SHRINERS HOSPITALS FOR ORDER REGARDING 13 CHILDREN, a foreign nonprofit DEFENDANT’S MOTION TO 14 corporation, DISMISS 15 Defendant. 16 17 Before the Court are Defendant’s Motion to Dismiss, ECF Nos. 9, 12. The 18 motions were heard without oral argument. Defendant is represented by Margaret 19 Ann Burnham, Meagan A. Himes, and Sarah Elizabeth Ames Benedict. Plaintiff is 20 represented by Robert T. Wright and Samuel James Fenton. 21 On November 6, 2023, Plaintiff filed this action in Spokane County Superior 22 Court. Defendants removed the action to the Eastern District of Washington. On 23 February 9, 2024, Plaintiff filed an Amended Complaint, asserting claims for 24 failure to accommodate under the Americans with Disabilities Act (ADA) and the 25 Washington Law Against Discrimination (WLAD), as well as disability 26 discrimination / disparate treatment, age discrimination, and gender discrimination 27 under the WLAD. 28 Defendant now moves to dismiss Plaintiff’s Amended Complaint. Defendant 1 argues that: (1) Plaintiff cannot allege a failure to accommodate claim under the 2 ADA or the WLAD because he fails to plead he was disabled as the term is defined 3 by the WLAD and because his proposed accommodation would impose an undue 4 hardship under both laws; (2) Plaintiff’s disability-related claims cannot survive 5 because he could not perform his essential job functions unvaccinated without 6 posing a direct threat; and (3) Plaintiff’s First Amended Complaint does not allege 7 sufficient facts to state claims for age and gender discrimination under Fed. R. Civ. 8 P. 8. 9 Motion Standard 10 To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege 11 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. 12 v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when “the 13 plaintiff pleads factual content that allows the court to draw the reasonable 14 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 15 556 U.S. 662, 678 (2009). As the Ninth Circuit explained:
16 To be entitled to the presumption of truth, allegations in a complaint or 17 counterclaim may not simply recite the elements of a cause of action but must contain sufficient allegations of underlying facts to give fair notice 18 and to enable the opposing party to defend itself effectively. The factual 19 allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected 20 to the expense of discovery and continued litigation. 21 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 22 When evaluating a Rule 12(b)(6) motion, the court must draw all reasonable 23 inferences in favor of the non-moving party. Wolfe v. Strankman, 392 F.3d 358, 24 362 (9th Cir. 2004). However, the court is not required to accept conclusory 25 allegations as true or to accept any unreasonable inferences in a complaint. In re 26 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1054 (9th Cir. 2008). 27 // 28 // 1 Plaintiff’s Claims 2 Plaintiff alleges he was terminated after he sought but was denied a medical 3 exemption to the COVID-19 vaccination requirement. He is bringing five claims: 4 (1) Failure to accommodate under the Americans with Disability Act1 (ADA); (2) 0F 5 Failure to accommodate under the Washington Law Against Discrimination 6 (WLAD) ; (3) Disparate treatment on account of disability discrimination under the 7 WLAD; (4) Age discrimination under the WLAD; and (5) Gender discrimination 8 under the WLAD. 9 (1) Failure to Accommodate – ADA 10 To allege a prima facie case for discrimination under the ADA, Plaintiff 11 must show (1) he is disabled within the meaning of the ADA; (2) he is a qualified 12 individual able to perform the essential functions of the job with reasonable 13 accommodation, and (3) he suffered an adverse employment because of his 14 disability. Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th 15 Cir. 2012) (quotation omitted). 16 (1) Disability The term “disability” means, with respect to an individual-- 17 (A) a physical or mental impairment that substantially limits one or 18 more major life activities of such individual; (B) a record of such an impairment; or 19 (C) being regarded as having such an impairment . . . 20 (2) Major life activities 21 (A) In general 22 23 1 The ADA was first enacted in 1990 and became effective July 26, 1992. The 24 ADA Amendments Act of 2008 (ADAA) became effective January 1, 2009. The 25 ADAA reflected Congress’ view that the Supreme Court had interpreted the ADA 26 in an unduly narrow fashion in Toyota Motor Manufacturing v. Williams, 534 U.S. 27 184 (2002), and Sutton v. United Air Lines, 527 U.S. 471 (1999). See Weaving v. 28 City of Hillsboro, 763 F.3d 1106 (9th Cir. 2014). 1 For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, 2 eating, sleeping, walking, standing, lifting, bending, speaking, breathing, 3 learning, reading, concentrating, thinking, communicating, and working. 4 (B) Major bodily functions 5 For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions 6 of the immune system, normal cell growth, digestive, bowel, bladder, 7 neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 8 42 U.S.C. § 12102(1)-(2). 9 In the employment context, a qualified individual with a disability may show 10 an ADA discrimination in either of two ways: by presenting evidence of disparate 11 treatment or by showing a failure to accommodate. Dunlap v. Liberty Natural 12 Prods., Inc., 878 F.3d 794, 798 (9th Cir. 2017). Once an employer becomes aware 13 of the need for accommodation, that employer has a mandatory obligation under 14 the ADA to engage in an interactive process with the employee to identify and 15 implement appropriate reasonable accommodations. Humphrey v. Memorial 16 Hosps. Ass’n, 239 F.3d 1128, 1138 (9th Cir. 2001). 17 To state a claim for failure to provide reasonable accommodation under the 18 ADA, Plaintiff must allege: (1) he is a “qualified individual”2; (2) Defendant 19 1F received adequate notice of Plaintiff’s disability and desire for a reasonable 20 accommodation; and (3) a reasonable accommodation is available that would have 21 enabled Plaintiff to perform the essential functions of the job. Ninth Circuit Pattern 22 Jury Instruction 12.7. 23 Plaintiff alleges he is disabled within the meaning of the ADA and the 24 WLAD, as his asplenia, monorchism, and solitary kidney render him permanently 25
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1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Mar 26, 2024 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 ROBERT MILDES, a married man, 10 Plaintiff, No. 2:23-CV-00356-SAB 11 v. 12 SHRINERS HOSPITALS FOR ORDER REGARDING 13 CHILDREN, a foreign nonprofit DEFENDANT’S MOTION TO 14 corporation, DISMISS 15 Defendant. 16 17 Before the Court are Defendant’s Motion to Dismiss, ECF Nos. 9, 12. The 18 motions were heard without oral argument. Defendant is represented by Margaret 19 Ann Burnham, Meagan A. Himes, and Sarah Elizabeth Ames Benedict. Plaintiff is 20 represented by Robert T. Wright and Samuel James Fenton. 21 On November 6, 2023, Plaintiff filed this action in Spokane County Superior 22 Court. Defendants removed the action to the Eastern District of Washington. On 23 February 9, 2024, Plaintiff filed an Amended Complaint, asserting claims for 24 failure to accommodate under the Americans with Disabilities Act (ADA) and the 25 Washington Law Against Discrimination (WLAD), as well as disability 26 discrimination / disparate treatment, age discrimination, and gender discrimination 27 under the WLAD. 28 Defendant now moves to dismiss Plaintiff’s Amended Complaint. Defendant 1 argues that: (1) Plaintiff cannot allege a failure to accommodate claim under the 2 ADA or the WLAD because he fails to plead he was disabled as the term is defined 3 by the WLAD and because his proposed accommodation would impose an undue 4 hardship under both laws; (2) Plaintiff’s disability-related claims cannot survive 5 because he could not perform his essential job functions unvaccinated without 6 posing a direct threat; and (3) Plaintiff’s First Amended Complaint does not allege 7 sufficient facts to state claims for age and gender discrimination under Fed. R. Civ. 8 P. 8. 9 Motion Standard 10 To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege 11 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. 12 v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when “the 13 plaintiff pleads factual content that allows the court to draw the reasonable 14 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 15 556 U.S. 662, 678 (2009). As the Ninth Circuit explained:
16 To be entitled to the presumption of truth, allegations in a complaint or 17 counterclaim may not simply recite the elements of a cause of action but must contain sufficient allegations of underlying facts to give fair notice 18 and to enable the opposing party to defend itself effectively. The factual 19 allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected 20 to the expense of discovery and continued litigation. 21 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 22 When evaluating a Rule 12(b)(6) motion, the court must draw all reasonable 23 inferences in favor of the non-moving party. Wolfe v. Strankman, 392 F.3d 358, 24 362 (9th Cir. 2004). However, the court is not required to accept conclusory 25 allegations as true or to accept any unreasonable inferences in a complaint. In re 26 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1054 (9th Cir. 2008). 27 // 28 // 1 Plaintiff’s Claims 2 Plaintiff alleges he was terminated after he sought but was denied a medical 3 exemption to the COVID-19 vaccination requirement. He is bringing five claims: 4 (1) Failure to accommodate under the Americans with Disability Act1 (ADA); (2) 0F 5 Failure to accommodate under the Washington Law Against Discrimination 6 (WLAD) ; (3) Disparate treatment on account of disability discrimination under the 7 WLAD; (4) Age discrimination under the WLAD; and (5) Gender discrimination 8 under the WLAD. 9 (1) Failure to Accommodate – ADA 10 To allege a prima facie case for discrimination under the ADA, Plaintiff 11 must show (1) he is disabled within the meaning of the ADA; (2) he is a qualified 12 individual able to perform the essential functions of the job with reasonable 13 accommodation, and (3) he suffered an adverse employment because of his 14 disability. Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th 15 Cir. 2012) (quotation omitted). 16 (1) Disability The term “disability” means, with respect to an individual-- 17 (A) a physical or mental impairment that substantially limits one or 18 more major life activities of such individual; (B) a record of such an impairment; or 19 (C) being regarded as having such an impairment . . . 20 (2) Major life activities 21 (A) In general 22 23 1 The ADA was first enacted in 1990 and became effective July 26, 1992. The 24 ADA Amendments Act of 2008 (ADAA) became effective January 1, 2009. The 25 ADAA reflected Congress’ view that the Supreme Court had interpreted the ADA 26 in an unduly narrow fashion in Toyota Motor Manufacturing v. Williams, 534 U.S. 27 184 (2002), and Sutton v. United Air Lines, 527 U.S. 471 (1999). See Weaving v. 28 City of Hillsboro, 763 F.3d 1106 (9th Cir. 2014). 1 For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, 2 eating, sleeping, walking, standing, lifting, bending, speaking, breathing, 3 learning, reading, concentrating, thinking, communicating, and working. 4 (B) Major bodily functions 5 For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions 6 of the immune system, normal cell growth, digestive, bowel, bladder, 7 neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 8 42 U.S.C. § 12102(1)-(2). 9 In the employment context, a qualified individual with a disability may show 10 an ADA discrimination in either of two ways: by presenting evidence of disparate 11 treatment or by showing a failure to accommodate. Dunlap v. Liberty Natural 12 Prods., Inc., 878 F.3d 794, 798 (9th Cir. 2017). Once an employer becomes aware 13 of the need for accommodation, that employer has a mandatory obligation under 14 the ADA to engage in an interactive process with the employee to identify and 15 implement appropriate reasonable accommodations. Humphrey v. Memorial 16 Hosps. Ass’n, 239 F.3d 1128, 1138 (9th Cir. 2001). 17 To state a claim for failure to provide reasonable accommodation under the 18 ADA, Plaintiff must allege: (1) he is a “qualified individual”2; (2) Defendant 19 1F received adequate notice of Plaintiff’s disability and desire for a reasonable 20 accommodation; and (3) a reasonable accommodation is available that would have 21 enabled Plaintiff to perform the essential functions of the job. Ninth Circuit Pattern 22 Jury Instruction 12.7. 23 Plaintiff alleges he is disabled within the meaning of the ADA and the 24 WLAD, as his asplenia, monorchism, and solitary kidney render him permanently 25
26 2The term “qualified individual” means an individual who, with or without 27 reasonable accommodation, can perform the essential functions of the employment 28 position that such individual holds or desires. 42 U.S.C. § 12111(8). 1 immunocompromised and substantially limit one or more major life activities, 2 including the operation of major bodily functions, such as functions of the immune 3 system, reproductive system, and circulatory system. 4 Plaintiff alleges he was able to perform the essential functions of his job as a 5 physical therapist at Shriners Hospital with or without reasonable accommodation, 6 as evidenced by his successful treatment of patients during the COVID-19 7 pandemic via the utilization of personal protective equipment and safety measures 8 designed to minimize the spread of COVID-19. 9 Plaintiff alleges Defendant unlawfully discriminated against him in violation 10 of the ADA by refusing and/or failing to engage in an interactive process with him 11 to determine if an appropriate accommodation existed, despite receiving notice of 12 his disability and request for accommodation from Shriners’ COVID-19 13 Vaccination Policy. 14 Here, Plaintiff has alleged sufficient facts to state a claim for failure to 15 accommodate. Plaintiff has alleged sufficient facts to show that he was disabled 16 within the meaning of the ADA, he was qualified to perform the essential functions 17 of the job with reasonable accommodation, and he suffered an adverse 18 employment because of his disability. He has also alleged sufficient facts to show 19 that Defendant failed to engage in the interactive process with him. 20 Whether Plaintiff’s proposed accommodation would impose an undue 21 hardship and whether he was unable to perform his essential job functions 22 unvaccinated without posing a direct threat will need to be determined at a later 23 proceeding. 24 (2) Failure to Accommodate Under the WLAD 25 Similarly, the Washington Law Against Discrimination requires an employer 26 to reasonably accommodate an employee with a disability unless the 27 accommodation would pose an undue hardship. Wash. Rev. Code § 49.60.180(2). 28 “Disability” under the WLAD means the presence of a sensory, mental, or physical 1 impairment that is medically cognizable or diagnosable. Wash. Rev. Code § 2 49.60.040(7)(a). 3 “Impairment” includes but is not limited to: (i) Any physiological disorder, 4 or condition, cosmetic disfigurement, or anatomical loss affecting one or more of 5 the following body systems: Neurological, musculoskeletal, special sense organs, 6 respiratory, including speech organs, cardiovascular, reproductive, digestive, 7 genitor-urinary [genitourinary], hemic and lymphatic, skin, and endocrine. § 8 49.60.040(7)(C). 9 For purposes of qualifying for a reasonable accommodation in employment, 10 an impairment must be known or shown through an interactive process to exist in 11 fact and: (i) The impairment must have a substantially limiting effect upon the 12 individual’s ability to perform his or her job, the individual’s ability to apply 13 or be considered for a job, or the individual’s access to equal benefits, privileges, or terms or conditions of employment; or 14 15 (ii) The employee must have put the employer on notice of the existence of an impairment, and medical documentation must establish a reasonable 16 likelihood that engaging in job functions without an accommodation would 17 aggravate the impairment to the extent that it would create a substantially limiting effect. 18 Under Washington law, to allege a prima facie case for a failure to 19 reasonably accommodate a disability, the plaintiff must show that (1) the employee 20 had a sensory, mental, or physical abnormality that substantially limited his or her 21 ability to perform the job, and either (a) the impairment had a substantially limiting 22 effect on the individual’s ability to perform the job or (b) the employee put the 23 employer on notice of the impairment’s existence and medical documentation 24 established a reasonable likelihood that engaging in the job functions without an 25 accommodation would create a substantially limiting effect; (2) the employee was 26 qualified to perform the essential functions of the job in question; (3) the employee 27 gave the employer notice of the abnormality and its accompanying substantial 28 1 limitations; and (4) upon notice, the employer failed to affirmatively adopt 2 measures that were available to the employer and medically necessary to 3 accommodate the abnormality. Gamble v. City of Seattle, 6 Wash.App.2d 883, 4 888-89 (2018). 5 Plaintiff alleges he is disabled within the meaning of the WLAD in that he 6 has a permanent physical impairment which has been medically diagnosed as 7 asplenia, monorchism, and solitary kidney, the absence of major organs within the 8 hemic, reproductive, lymphatic and endocrine systems. As a result of his disability, 9 Plaintiff is permanently immunocompromised and impacted by vaccines in a 10 different manner than those without his disability and is medically recommended 11 to take certain precautions before administering vaccines, including consulting 12 studies as to the safety and efficacy of said vaccines. He alleges he was qualified to 13 perform his job at Shriners as a physical therapist and he was able to perform the 14 essential functions of his job as a physical therapist at Shriners Hospital with or 15 without reasonable accommodation, as evidenced by Mr. Mildes’ successful 16 treatment of patients during the COVID-19 pandemic via the utilization of personal 17 protective equipment and safety measures designed to minimize the spread of 18 COVID-19. 19 Here, Plaintiff has alleged adequate facts to allege a prima facie claim for 20 failure to reasonably accommodate a disability. Plaintiff has alleged that he has a 21 physical abnormality that substantially limited his ability to perform the job 22 because he was required to receive the COVID-19 vaccine to perform his job, but 23 he was unable to receive the vaccine because of his physical abnormalities. 24 According to the allegations, Defendant was put on notice of his impairment and 25 Defendant refused to accommodate him to allow him to continue his employment. 26 Whether Plaintiff’s proposed accommodation would impose an undue 27 hardship and whether he was unable to perform his essential job functions 28 unvaccinated without posing a direct threat will need to be determined at a later 1 proceeding. 2 3. Disparate Treatment, Age Discrimination, and Gender 3 Discrimination under the WLAD 4 Disparate treatment occurs when an employer treats some people less 5 favorably than others because of disability or other protected status. Hegwine, v. 6 Longview Fibre Co., 162 Wash.2d 340, 354 n.7 (2007); Wash. Rev. Code § 7 49.60.180(3). To show that Defendant discriminated against Plaintiff, he must 8 allege the following: (1) Defendant took an adverse employment action against 9 him and (2) Plaintiff’s disability/age/gender was a substantial fact in Defendant’s 10 decision to take the adverse action.3 Wash. Pattern Jury Instruction Nos. 330.01, 2F 11 330.32. 12 Plaintiff alleges Defendant unlawfully terminated him in violation of the 13 WLAD when it terminated him from his employment because he did not receive 14 the COVID-19 vaccine to perform his job, but he was unable to receive the vaccine 15 because of his disability. He also alleges facts showing that Defendant treated 16 younger employees and female employees more favorably when making 17 COVID-19 related accommodations and that his age and gender were a substantial 18 factor motivating Defendant to terminate his employment. 19 Plaintiff has alleged sufficient facts to support his claims that his disability, 20 age, and gender served as substantial factors in his termination. 21 // 22 // 23 // 24 // 25 26 3With respect to his discrimination based on his disability claim, Plaintiff must also 27 show that he has a disability and is able to perform the essential functions of the 28 job in question with reasonable accommodation. WPJI No. 330.32. 1 Accordingly, IT IS HEREBY ORDERED: 1. Defendant’s Motion to Dismiss for Failure to State a Claim, ECF No. 9, is DENIED. 2. Defendant’s Motion to Dismiss for Failure to State a Claim, ECF No. 12, is DENIED. IT IS SO ORDERED. The District Court Executive is hereby directed to file this Order and provide copies to counsel. 8 DATED this 26th day of March 2024. 9 10 11 12 13 Sclerld Eee roar 15 Stanley A. Bastian Chief United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING DEFENDANT?’S MOTION TO DISMISS ~ 9