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3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT SEATTLE 6 SCOTT D. WARREN, 7 Plaintiff, 8 v. C24-1320 TSZ 9 REGUS MANAGMENT GROUP, ORDER 10 LLC, Defendant. 11
12 THIS MATTER comes before the Court on a motion to dismiss, docket no. 22, 13 brought by defendant Regus Management Group, LLC, doing business as “Bellingham 14 Regus” (“Regus”). Having reviewed all papers filed in support of, and in opposition to, 15 the motion, the Court enters the following order. 16 Background 17 For approximately four years, plaintiff Scott D. Warren worked part-time as a 18 receptionist for Regus, earning $1,470 per month. First Amended Complaint (“FAC”) at 19 ¶¶ 3.3, 3.5, & 3.19 (docket no. 14).1 Plaintiff is a 62-year-old man with a disability. Id. at 20
21 1 Throughout his tenure with Regus, plaintiff received good performance reviews. FAC at ¶ 3.10 (docket 22 no. 14). 1 ¶ 3.2. He has cerebral palsy, a condition that causes difficulty walking, lifting heavy 2 objects, and performing other activities of daily living. Id. In addition to his wages from
3 Regus, plaintiff was receiving monthly Social Security Disability Insurance (“SSDI”) 4 benefits. Id. at ¶ 3.4. Plaintiff alleges he communicated clearly to Regus that he “needed 5 to stay under a monthly hourly allowance due to his disability and his disability 6 benefits[,]” and that Regus had allowed plaintiff to adjust his schedule “to fit” within the 7 hours allowed by SSDI regulations. Id. at ¶¶ 3.6–3.7. 8 In May 2023, defendant informed plaintiff that it wanted to terminate him, but
9 could not, and instead asked for his resignation. Id. at ¶¶ 3.8–3.9. Plaintiff refused. Id. at 10 ¶ 3.11. Defendant informed plaintiff that he must work a number of hours that would 11 result in earnings exceeding $1,470 per month, which would cause him to lose his SSDI 12 benefits. Id. at ¶¶ 3.12–3.15. Plaintiff, in an effort to keep his job and not go over the 13 SSDI limit for supplemental income, requested a number of accommodations, including
14 maintaining his part-time schedule or taking a reduction in wages. Id. at ¶ 3.13. Plaintiff 15 was nonetheless scheduled to work a higher number of hours. Id. at ¶ 3.15. Defendant, 16 “[o]n information and belief,” hired a “replacement worker” that “did not have any 17 disabilities or require any accommodations[.]” Id. at ¶ 3.18. After refusing to work hours 18 that would place him over the SSDI limit on other income, plaintiff was terminated on
19 June 30, 2023. Id. at ¶ 3.19. 20 On July 19, 2024, plaintiff filed this action against defendant in Whatcom County 21 Superior Court, alleging disability discrimination claims under the Washington Law 22 Against Discrimination (“WLAD”), RCW 49.60.180. See Compl. (docket no. 1-1). On 1 August 22, 2024, defendant removed the case pursuant to 28 U.S.C. § 1332. Notice of 2 Removal at 2–3 (docket no. 1). On September 23, 2024, plaintiff filed the FAC, asserting
3 discrimination claims under federal and state law (the first and second causes of action) 4 and retaliation claims under federal and state law (the third and fourth causes of action). 5 See FAC at ¶¶ 4.1–7.5 (docket no. 14). The federal statutes pursuant to which plaintiff 6 pursues his claims are Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 7 2000e-2, and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112; 8 plaintiff’s state laws claims are pleaded solely under the WLAD. Citing Federal Rule of
9 Civil Procedure 12(b)(6), defendant now moves to dismiss all claims for failure to state a 10 claim. 11 Discussion 12 A. Motion to Dismiss Standard 13 Although a complaint challenged by a Rule 12(b)(6) motion to dismiss need not
14 provide detailed factual allegations, it must contain “more than labels and conclusions” 15 and more than a “formulaic recitation of the elements of a cause of action.” Bell Atl. 16 Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must indicate more than 17 mere speculation of a right to relief. Id. When a complaint fails to adequately state a 18 claim, such deficiency should be “exposed at the point of minimum expenditure of time
19 and money by the parties and the court.” Id. at 558. A complaint may be lacking for one 20 of two reasons: (i) absence of a cognizable legal theory, or (ii) insufficient facts under a 21 cognizable legal claim. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th 22 Cir. 1984). In ruling on a motion to dismiss, the Court must assume the truth of the 1 plaintiff’s allegations and draw all reasonable inferences in the plaintiff’s favor. Usher v. 2 City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). The question for the Court is
3 whether the facts in the complaint sufficiently state a “plausible” ground for relief. 4 Twombly, 550 U.S. at 570. 5 B. Disability Discrimination as Alleged Under the First Cause of Action 6 Plaintiff’s first cause of action, brought under federal law, claims three bases for 7 relief, namely disability discrimination, failure to accommodate, and hostile work 8 environment claims, under both Title VII and the ADA.
9 1. All Discrimination Claims Under Title VII 10 Plaintiff asserts defendant discriminated against him based on his disability in 11 violation of Title VII. See FAC at ¶¶ 4.1–4.8 (docket no. 14). Defendant moves to 12 dismiss plaintiff’s Title VII claims, asserting that Title VII does not protect against 13 discrimination based on disability. Def.’s Mot. at 2, n.1 (docket no. 22). Plaintiff does not
14 address this argument in his response. See generally Pl.’s Resp. (docket no. 23). The 15 Court agrees with defendant that Title VII’s prohibitions against discrimination extend 16 only to race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-16(a); see also 17 Richardson v. Yellen, 167 F. Supp. 3d 105, 110 (D.D.C. 2016) (declining to analyze a 18 failure to accommodate a disability claim under Title VII because the Civil Rights Act
19 does not “require[] accommodations for disabled persons.”). Accordingly, plaintiff’s Title 20 VII disability discrimination claims are DISMISSED with prejudice. See, e.g., Ty v. 21 Mayorkas, 2024 WL 4452898, at *2 (C.D. Cal. Sept. 9, 2024) (dismissing with prejudice 22 discrimination claims brought under Title VII). 1 2. Disability Discrimination Under the ADA 2 Defendant moves to dismiss plaintiff’s claim, brought under the ADA, that he
3 was terminated because of his disability, arguing that plaintiff has not alleged he was 4 treated less favorably than a similarly situated, non-disabled employee performing 5 comparable work. Defendant’s motion lacks merit. To make a claim for disability 6 discrimination under the ADA, plaintiff must show that he (1) is disabled; (2) is qualified 7 for the job; and (3) was terminated because of his disability. Erickson v. Biogen, Inc., 417 8 F. Supp. 3d 1369, 1378 (W.D. Wash. 2019). At the motion to dismiss stage, Federal Rule
9 of Civil Procedure 8(a)(2) requires only a “short and plain statement of the claim showing 10 the pleader is entitled to relief” in the employment discrimination context. Swierkiewicz 11 v. Sorema N. A., 534 U.S. 506, 508 (2002). Here, plaintiff alleges that defendant hired his 12 replacement prior to terminating his employment, informed him that it wanted to 13 terminate him but instead requested his resignation, and subjected him to negative
14 treatment following his request for an accommodation. FAC at ¶¶ 3.9–3.11, 3.17–3.18 15 (docket no. 14). Plaintiff contends that these events, taken together, plausibly raise an 16 inference of discriminatory intent. The Court agrees. Although plaintiff does not 17 specifically allege that he was treated less favorably than a similarly situated, non- 18 disabled employee, such comparative showing is not required at the motion to dismiss
19 stage. See Schmitt v. Kaiser Found. Health Plan of Washington, 965 F.3d 945, 959 n.8 20 (9th Cir. 2020) (“At the pleadings stage, we do not require a plaintiff to allege enough 21 detail to state a prima facie case of discrimination[]–only ‘sufficient factual matter, 22 accepted as true, to ‘state a claim to relief that is plausible on its face.’’” (citation 1 omitted)). Defendant’s motion is DENIED as to plaintiff’s ADA disability discrimination 2 claim.
3 3. Failure to Accommodate Under the ADA 4 To survive a motion to dismiss an ADA failure to accommodate claim, a plaintiff 5 must plausibly allege that he or she was a qualified individual2 with a disability, the 6 defendant was on notice of his or her disability, and his or her request for a reasonable 7 accommodation would not have placed an undue hardship3 on the employer’s business. 8 Snapp v. United Transp. Union, 889 F.3d 1088, 1095 (9th Cir. 2018) (citing 42 U.S.C.
9 § 12112(b)(5)(A)). “Once an employer becomes aware of the need for accommodation, 10 that employer has a mandatory obligation under the ADA to engage in an interactive 11 process with the employee to identify and implement appropriate reasonable 12 accommodations.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 13 2001). Although the interactive process is “at the heart of the accommodation process[,]”
14 a failure to engage in the interactive process, standing alone, does not constitute a claim 15 under the ADA. Snapp, 889 F.3d at 1095. Rather, a failure-to-accommodate claim must 16 be premised on discrimination that “results from denying an available and reasonable 17 accommodation.” Id. 18
20 2 The term “qualified individual” means an individual who, with or without a reasonable accommodation, can perform the essential functions of the employment position. 42 U.S.C. § 12111(8). 21 3 “The [ADA] statute itself places on the employer the burden to demonstrate an undue hardship.” Snapp, 22 889 F.3d at 1095. 1 Plaintiff alleges that he requested an accommodation in the form of reduced work 2 hours or modified pay to avoid exceeding the income threshold for SSDI financial
3 benefits. FAC at ¶¶ 3.6, 3.13 (docket no. 14). He also argues that defendant failed to 4 engage in the interactive process4 required by the ADA. Id. at ¶¶ 3.14, 4.6. Defendant 5 moves to dismiss this claim, asserting that the basis for plaintiff’s accommodation 6 request, to maintain SSDI financial benefits, is not cognizable under the ADA. Def.’s 7 Mot. at 6 (Docket no. 22). For support, defendant cites Hunter v. Home Depot U.S.A., 8 Inc., 270 F. App’x. 654 (9th Cir. 2008), and McEwan v. UPMC Shadyside Presbyterian
9 Hospital, 2010 WL 4879195 (W.D. Pa. Nov. 23, 2010). Plaintiff’s attempts to distinguish 10 both Hunter and McEwan are not persuasive. 11 In Hunter, the Ninth Circuit concluded that, because the employee had not 12 demonstrated that her requests “to be scheduled to work more hours per week were 13 because of physical disabilities[,]” as opposed to for financial reasons, her failure to
14 accommodate claim must fail. 270 F. App’x at 655. Similarly, in McEwan, the district 15 court ruled that an employee’s request for additional work hours for financial reasons did 16 not give rise to a duty to accommodate, reasoning that the request was “for personal 17 reasons, rather than as a reasonable accommodation ‘because of’ [the employee’s] 18 disability.” 2010 WL 4879195, at *5.
19 20 4 Because plaintiff’s accommodation request was based on financial reasons, “which does not constitute a 21 request for a reasonable accommodation based on a disability,” defendant’s alleged failure to engage in the interactive process to determine if an appropriate accommodation existed does not support liability for 22 a failure to accommodate. Hunter, 270 F. App’x. at 655. 1 Although plaintiff correctly notes that the employees in Hunter and McEwan 2 sought to work more hours for financial reasons, whereas plaintiff seeks to work fewer
3 hours to protect his SSDI benefits and to not “los[e] his main source of income[,]” the 4 underlying legal principle in both cases applies equally here. The ADA does not require 5 an employer to accommodate an employee’s financial circumstances or desire to 6 maintain eligibility for public benefits when the accommodation is not requested to also 7 address a physical or mental limitation arising from the employee’s disability. See 8 Hunter, 270 F. App’x. at 655. Plaintiff alleges only that he requested a modified schedule
9 or a reduction in wages to keep him below the SSDI benefit limit, not that his disability 10 prevented him from performing his scheduled hours or otherwise limited his ability to 11 work. See FAC at ¶¶ 3.15, 3.19 (docket no. 14). Plaintiff has failed to allege a cognizable 12 accommodation claim under the ADA,5 and the claim is DISMISSED without prejudice. 13 4. Hostile Work Environment Under the ADA
14 Plaintiff alleges that because defendant tampered with his work computer, denied 15 him training opportunities, engaged in “odd and distant” treatment, and failed to engage 16 17 5 In response to the motion, plaintiff argues that his request to limit his work hours to remain eligible for SSDI benefits qualifies as a cognizable request for a reasonable accommodation under the ADA. See Pl.’s Resp. at 8 (docket no. 23). He contends that his disability is the reason for the earnings limitations 18 imposed by the SSDI, and therefore, his employer was required to accommodate his request to limit his hours to maintain those benefits. Id. Plaintiff also cites the stated purpose of promoting “economic self- 19 sufficiency” for individuals with disabilities, 42 U.S.C. § 12101(a)(7), to support his position. See id. This argument is unpersuasive and not supported by law. The ADA requires employers to provide reasonable 20 accommodations for limitations arising from an individual’s disability that affects the performance of essential job functions. See 42 U.S.C. § 12112 (b)(5)(A). The ADA does not, however, require employers to accommodate an employee’s desire to preserve eligibility for SSDI benefits. See Hunter v. Home 21 Depot, U.S.A., Inc., 2006 WL 2728938, at *2 (D. Or. Sept. 22, 2006), aff’d, 270 F. App’x. 654 (9th Cir. 2008) (holding that “balancing [] earned income to maximize the receipt of benefits from the Social 22 Security Administration” is an issue that the ADA does not require employers to accommodate). 1 meaningfully with him during discussions about his accommodation request, it created a 2 hostile work environment under the ADA. FAC at ¶¶ 3.17 & 4.4 (docket no. 14).
3 Defendant moves to dismiss this claim, arguing that (i) plaintiff has not alleged facts 4 showing that any conduct was sufficiently severe or pervasive to alter the conditions of 5 his employment, and (ii) plaintiff has not stated facts showing that any of the alleged 6 conduct occurred because of his disability, as required to state a plausible hostile work 7 environment claim. Def.’s Mot. at 8 (docket no. 22). 8 The Court agrees with defendant. To state an ADA hostile work environment
9 claim6 on the basis of disability, a plaintiff must show that “(1) he has a disability; (2) 10 that he was subjected to unwelcome harassment, (3) that the harassment was based on his 11 disability; (4) that the harassment was sufficiently severe or pervasive to alter the 12 conditions of employment and to create an abusive working environment; and (5) that the 13 employer knew or should have known about the harassment and failed to take prompt
14 action to stop it.” Northrop v. Safeway, Inc., 2017 WL 1543331, at *2 (W.D. Wash. Apr. 15 28, 2017). At this stage, plaintiff need not support his allegations with evidence, but he 16 must allege in his FAC sufficient facts to state the elements of a hostile work 17
18 6 The Ninth Circuit has not decided whether a plaintiff may state a claim under the ADA based on an 19 alleged hostile work environment created by disability harassment. Mattison v. Loma Linda Univ. Med. Ctr., 2023 WL 4157466, at *28 (C.D. Cal. Apr. 6, 2023); see also Meirhofer v. Smith’s Food & Drug 20 Centers Inc., 415 Fed. Appx. 806, 807 (9th Cir. 2011) (in which the Ninth Circuit assumed, “arguendo, that hostile work environment claims are cognizable under the ADA”). However, “every circuit to have done so has concluded that disability-based claims for hostile work environment are actionable under the 21 ADA.” Mcintyre v. Eugene Sch. Dist. 4J, 976 F.3d 902, 916 (9th Cir. 2020); see also Ford v. Marion Cty. Sheriff’s Office, 942 F.3d 839, 852 (7th Cir. 2019) (joining the five other circuits in reaching the same 22 conclusion). 1 environment claim—“a formulaic recitation of a cause of action’s elements will not do.” 2 See Twombly, 550 U.S. at 555.
3 In this case, plaintiff fails to allege that he was subjected to a hostile work 4 environment because of his disability under the ADA. The treatment alleged by plaintiff 5 is not so severe or pervasive as to rise to a level of a “discriminatorily hostile or abusive 6 environment.” Bradley v. Swedish Health Servs., 2023 WL 8879121, at *7 (W.D. Wash. 7 Dec. 22, 2023) (internal quotation marks omitted); Brediger v. Gen. Nutrition Corp., 8 2015 WL 5797095, at *5 (W.D. Wash. Oct. 2, 2015) (concluding that the hostile work
9 environment claims should be dismissed because the alleged treatment, including being 10 treated in a “rude, demeaning, [and] hostile manner[,]” was not sufficiently severe or 11 pervasive to create an abusive working environment). Accordingly, the plaintiff’s ADA 12 hostile work environment claim is DISMISSED7 without prejudice. 13 C. Disability Discrimination as Alleged Under the Second Cause of Action
14 Plaintiff’s second cause of action states three bases for relief, namely disability 15 discrimination, failure to accommodate, and hostile work environment, under the WLAD. 16 1. Disability Discrimination Under the WLAD 17 Plaintiff claims that defendant terminated his employment because of his 18 disability. FAC at ¶¶ 3.19-3.2, & 5.3 (docket no. 14). He contends that such
19 discrimination violates the WLAD. See Id. at ¶¶ 5.7 and 5.8. To establish a prima facie 20
21 7 The Court notes that a hostile work environment claim is not included in the Equal Employment Opportunity Commission (“EEOC”) charge attached to the motion. See Exhibit B, Def’s Mot. (docket 22 no. 22). As a result, amendment of the claim might be futile. 1 case of disability discrimination under the WLAD, plaintiff must satisfy the same 2 elements required under the ADA. See Erickson v. Biogen, Inc., 417 F. Supp. 3d 1369,
3 1378 (W.D. Wash. 2019) (citing Hines v. Todd Pac. Shipyards Corp., 127 Wn. App. 356, 4 112 P.3d 522 (2005)). Here, plaintiff’s WLAD disability discrimination claim is based on 5 similar factual allegations as his ADA discrimination claim. See FAC at ¶¶ 5.1, 5.5 6 (docket no. 14). Because the legal standard under the WLAD mirrors that of the ADA 7 and the allegations are substantively similar, the Court reaches the same conclusion. 8 Accordingly, defendant’s motion is DENIED as to plaintiff’s WLAD disability
9 discrimination claim. 10 2. Failure to Accommodate Under the WLAD 11 Plaintiff also asserts a failure to accommodate claim under the WLAD. Plaintiff 12 alleges that he has a disability and requested an accommodation in the form of reduced 13 hours or modified pay, which defendant denied. Defendant moves to dismiss this claim,
14 arguing that plaintiff has not alleged that his disability substantially limited his ability to 15 perform his job and that the requested accommodation was not “medically necessary.” 16 Def.’s Mot. at 4–7 (docket no. 22). 17 Under the WLAD, an accommodation claim involves two inquiries: “(i) whether 18 the employee was disabled within the meaning of the WLAD; and (ii) whether the
19 employer met its affirmative obligation to reasonably accommodate the disability.” 20 Horman v. Sunbelt Rentals Inc., 2020 WL 4366185, at *4 (W.D. Wash. July 30, 2020) 21 (citing Delaplaine v. United Airlines, Inc., 518 F. Supp. 2d 1275, 1277 (W.D. Wash. 22 2007)). The current standard for a right to an accommodation under the WLAD, as 1 clarified after the 2007 amendment to the statute, requires the Court to consider whether a 2 plaintiff’s impairment had a “substantially limiting effect” on their ability to perform the
3 job, or whether “doing the job without an accommodation was likely to aggravate the 4 impairment such that it became substantially limiting.” Johnson v. Chevron U.S.A., Inc., 5 159 Wn. App. 18, 29-30, 244 P.3d 438 (2010) (holding that “medical necessity is no 6 longer the sole basis for a right to an accommodation” and that “the question is not 7 whether the accommodation was ‘medically necessary’” under the amended statute). 8 Plaintiff’s WLAD failure to accommodate claim is not sufficiently pleaded.
9 Plaintiff does not allege that his disability “substantially limited” his ability to perform 10 his job or that reduced hours were reasonably necessary to address any such limitation. 11 Instead, plaintiff alleges that remaining below the SSDI income threshold was necessary 12 to retain financial benefits. See generally FAC (docket no. 14). Remaining below the 13 SSDI income threshold is a financial consideration, not a workplace limitation caused by
14 the functional effects of a disability. Moreover, plaintiff does not allege that working 15 without a reduced-hour accommodation would likely aggravate his impairment to the 16 point that it would become substantially limiting. Rather, his allegations focus on the 17 financial consequences of working additional hours. Because plaintiff does not 18 sufficiently allege facts to support his WLAD failure to accommodate claim, the claim is
19 DISMISSED without prejudice. 20 3. Hostile Work Environment Under the WLAD 21 Plaintiff alleges that defendant created a hostile work environment under state law. 22 FAC at ¶¶ 3.17 & 5.4 (docket no. 14). To state a WLAD hostile work environment claim 1 on the basis of disability, a plaintiff must show that (1) he or she has a disability; (2) that 2 he or she was subjected to unwelcome harassment, (3) that the harassment was based on
3 his or her disability; (4) that the harassment impacted the terms and conditions of his or 4 her employment; and (5) that the harassment was imputable to the employer. Horman v. 5 Sunbelt Rentals Inc., 2020 WL 4366185, at *5 (W.D. Wash. July 30, 2020) (citing Robel 6 v. Roundup Corp., 148 Wn.2d 35, 45, 59 P.3d 611 (2002)). In this case, plaintiff fails to 7 allege that he was subjected to a hostile work environment because of his disability. 8 Allegations of odd or distant treatment, computer tampering, and a denial of training
9 opportunities are not “sufficiently severe or pervasive” to show that, because of his 10 disability, his workplace became “so ‘permeated with discriminatory intimidation, 11 ridicule, and insult’” that the conditions of his employment were altered. See Horman, 12 2020 WL 4366185, at *5 (granting summary judgment as to the plaintiff’s WLAD hostile 13 work environment claim because no facts were alleged showing that, because of the
14 plaintiff’s disability, the plaintiff experienced humiliation or ridicule that created an 15 abusive working environment). Accordingly, the plaintiff’s WLAD hostile work 16 environment claim is DISMISSED without prejudice. 17 D. Retaliation as Alleged Under the Third Cause of Action 18 Plaintiff’s third cause of action alleges retaliation under federal law. The Court
19 addresses retaliation under Title VII and the ADA separately. 20 1. Retaliation Claims Under Title VII 21 Plaintiff claims retaliation under Title VII, alleging that following his request for 22 an accommodation related to his disability, defendant subjected him to hostile treatment, 1 altered his working conditions, and ultimately terminated his employment. FAC at ¶¶ 2 6.1–6.6 (docket no. 14). Retaliation claims under Title VII must be based on opposition
3 to practices made unlawful by Title VII. Brooks v. City of San Mateo, 229 F.3d 917, 923 4 (9th Cir. 2000) (“Title VII prohibits employment discrimination based on any of its 5 enumerated grounds: race, color, religion, sex, or national origin.”) (internal citations and 6 quotation marks omitted); VanGieson v. Austin, 2022 WL 16571125, at *7 (S.D. Cal. 7 Sept. 27, 2022) (“Disability is not a class protected by Title VII, and [Plaintiff] does not 8 allege that she engaged in any protected activity under Title VII for purposes of a
9 retaliation claim.”) (alteration in original, internal quotation marks omitted), aff’d, 2024 10 WL 771703 (9th Cir. Feb. 26, 2024). 11 Plaintiff alleges that he was retaliated against for requesting a disability-related 12 accommodation, which does not qualify as protected activity under Title VII. Because 13 plaintiff’s Title VII retaliation claim relies entirely on his requests for disability
14 accommodations, which are outside the scope of Title VII protections, the claim is not 15 cognizable. Plaintiff’s Title VII retaliation claim is DISMISSED with prejudice. 16 2. Retaliation Claims Under the ADA 17 a. The EEOC Charge 18 Before bringing an ADA claim in federal court, a plaintiff must exhaust
19 administrative remedies by filing a charge, which includes the alleged conduct, with the 20 EEOC, “within 300 days of the claimed event of discrimination and obtain a right-to-sue 21 letter before bringing civil claims.” Moriarty v. Port of Seattle, 2024 WL 4290279, at *8 22 (W.D. Wash. Sept. 25, 2024) (citing Josephs v. Pac. Bell, 443 F.3d 1050, 1061 (9th Cir. 1 2006)); 42 U.S.C. §§ 2000e-5(e)(1). When ruling on a motion to dismiss, if a court 2 considers evidence outside the pleadings, such as an EEOC charge, generally it must
3 convert the motion into a summary judgment motion and give the nonmoving party an 4 opportunity to respond. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). A 5 court may, however, consider evidence that is not attached to the complaint at the motion 6 to dismiss stage if a complaint necessarily relies on it and “(1) the complaint refers to the 7 document; (2) the document is central to the plaintiff’s claim; and (3) no party questions 8 the authenticity of the copy attached to the 12(b)(6) motion.” Marder v. Lopez, 450 F.3d
9 445, 448 (9th Cir. 2006). This exception applies here. Plaintiff alleges in his FAC that he 10 timely filed a charge of discrimination with the EEOC and received a right-to-sue letter. 11 FAC at ¶¶ 2.5, 7.3 (docket no. 14). Because exhaustion of administrative remedies is a 12 prerequisite to pursuing ADA claims in federal court, and no party disputes the 13 document’s authenticity, the EEOC charge, Exhibit B to defendant’s motion (docket no.
14 22), is central to plaintiff’s claims and properly considered on a motion to dismiss.8 See 15 Josephs, 443 F.3d at 1061 (“An individual plaintiff must first file a timely EEOC 16 complaint against the allegedly discriminatory party before bringing an ADA suit in 17 federal court.”). 18 Plaintiff asserts that the charge attached to the motion is incomplete and attaches
19 his EEOC filings as well as his right-to-sue letter. See Declaration, Exhibit 3 (docket no. 20
21 8 Although defendant does not specifically request incorporation or judicial notice of the EEOC charge attached to the motion, the Court may incorporate the attachment by reference because plaintiff 22 necessarily relies on it to establish exhaustion and its authenticity is not disputed. 1 24). Defendant’s attachment itself confirms it is incomplete, as the only page of the 2 EEOC attached to the motion contains the label, “Page 1 of 2.” Def.’s Mot. at Ex. B
3 (docket no. 22). Because plaintiff necessarily relies on the EEOC filing and the right-to- 4 sue letter to satisfy the exhaustion requirement, and neither party disputes the authenticity 5 of these materials, the Court incorporates by reference the additional EEOC filings and 6 the right-to-sue letter (considering the totality of the EEOC-related documents as “the 7 Charge”). 8 b. Exhaustion of Administrative Remedies
9 Defendant moves to dismiss plaintiff’s ADA retaliation claims for failure to 10 exhaust administrative remedies, arguing that the charge plaintiff filed with the EEOC 11 alleges only discrimination based on disability and does not include any allegations of 12 retaliation. Def.’s Mot. at 9 (docket no. 22). Upon reviewing the Charge, the Court agrees 13 with defendant. The Charge references only disability discrimination and does not
14 mention retaliation as the basis for his termination. The factual allegations in an EEOC 15 charge must provide sufficient notice of the claims pursued in the subsequent litigation. 16 Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003); see also Dugay v. Complete Skycap 17 Servs., Inc., 2011 WL 3159171, at *5 (D. Ariz. July 26, 2011) (finding no exhaustion of a 18 retaliation claim where the EEOC charge focused solely on disability discrimination and
19 failed to mention any facts supporting retaliation). Like the EEOC charge referenced in 20 Dugay, plaintiff’s Charge focuses exclusively on discrimination and does not allege facts 21 indicating that his termination or any alleged hostile treatment was the result of 22 1 retaliatory actions. Because plaintiff failed to exhaust administrative remedies as to his 2 ADA retaliation claim, the claim is DISMISSED with prejudice.
3 E. Retaliation as Alleged Under the Fourth Cause of Action 4 Defendant moves to dismiss plaintiff’s retaliation claim brought under the WLAD. 5 To state a WLAD retaliation claim, plaintiffs must allege that (1) they engaged in 6 statutorily protected activity, (2) they suffered an adverse employment action, and (3) a 7 causal link exists between their protected activity and the adverse employment action. 8 Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411–12, 430 P.3d 229 (2018). “Proximity
9 in time between the protected activity and the discharge, as well as satisfactory work 10 performance and evaluations before the discharge, are both factors suggesting 11 retaliation.” Currier v. Northland Servs., Inc., 182 Wn. App. 733, 747, 332 P.3d 1006 12 (2014) (collecting cases). 13 Defendant argues that plaintiff has not alleged facts sufficient to show that a
14 causal link exists between plaintiff’s request for a reasonable accommodation and his 15 termination. The Court disagrees. Plaintiff alleges temporal proximity between his 16 accommodation requests and his termination. He also claims to have received good 17 performance reviews throughout his tenure with Regus. Taken together, these allegations 18 are sufficient to raise a plausible inference that plaintiff’s request for an accommodation
19 was linked to his termination. See Currier, 182 Wn. App. at 746-47. Defendant’s motion 20 to dismiss plaintiff’s WLAD retaliation claim is DENIED. 21 22 1 F. Leave to Amend Under Lopez 2 As a general rule, dismissal under Rule 12(b)(6) is without prejudice, and a
3 plaintiff should be granted leave to amend unless “the pleading could not possibly be 4 cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 5 2000) (internal citation omitted). 6 Plaintiff’s ADA retaliation claim is dismissed with prejudice because amendment 7 would be futile. Additionally, all Title VII claims are dismissed with prejudice because 8 disability discrimination and retaliation claims do not implicate a protected category
9 under Title VII. Plaintiff’s ADA failure to accommodate and hostile work environment 10 claims are dismissed without prejudice and with leave to amend, and plaintiff’s ADA 11 disability discrimination claim will remain. 12 Plaintiff’s WLAD failure to accommodate and hostile work environment claims 13 are dismissed without prejudice, as additional factual allegations could potentially cure
14 the identified deficiencies. Plaintiff’s WLAD disability discrimination and retaliation 15 claims will remain, as defendant has not shown bases for dismissal at this stage. 16 Conclusion 17 For the foregoing reasons, the Court ORDERS: 18 (1) Defendant’s motion to dismiss (docket no. 22) is GRANTED in part, and
19 DENIED in part, as follows: 20 (a) Plaintiff’s first cause of action is DISMISSED with prejudice as to 21 all claims under Title VII. Plaintiff’s first cause of action is DISMISSED without 22 prejudice and with leave to amend as to the failure to accommodate and hostile 1 work environment claims under the ADA. The motion to dismiss the first cause of 2 action is DENIED as to plaintiff’s claim for disability discrimination under the
3 ADA. 4 (b) Plaintiff’s second cause of action is DISMISSED without prejudice 5 as to the WLAD failure to accommodate and hostile work environment claims. 6 The motion to dismiss the second cause of action is DENIED as to plaintiff’s 7 claim for disability discrimination under the WLAD. 8 (c) Plaintiff’s third cause of action for retaliation under the ADA and
9 Title VII is DISMISSED with prejudice. 10 (d) The motion to dismiss plaintiff’s fourth cause of action for retaliation 11 under the WLAD is DENIED. 12 (2) Plaintiff shall electronically file any amended complaint by April 11, 2025. 13 (3) The Clerk is directed to send a copy of this Order to all counsel of record.
14 IT IS SO ORDERED. 15 Dated this 20th day of March, 2025. 16 A 17 Thomas S. Zilly 18 United States District Judge 19 20 21 22