Wharton v. Azenta Inc

• Court: District Court, W.D. Washington
• Decided: March 21, 2024
• Docket: 3:23-cv-05863
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 MITCHELL E. WHARTON, CASE NO. 3:23-cv-05863-DGE 11 Plaintiff, ORDER ON MOTION TO DISMISS 12 v. (DKT. NO. 8) 13 AZENTA INC., 14 Defendant. 15

16 This matter comes before the Court on Defendant’s motion to dismiss. (Dkt. No. 8.) For 17 the reasons discussed herein, Defendant’s motion is GRANTED. 18 I. FACTUAL AND PROCEDURAL BACKGROUND

19 Plaintiff, a 63 year old male, was hired by Azenta Life Sciences on February 27, 2012. 20 (Dkt. No. 1 at 2.) On April 13, 2021, Plaintiff was injured at work and opened a worker’s 21 compensation claim1 with the Washington Department of Labor and Industries (“DLI”). (Id.) 22

1 Plaintiff’s complaint does not specify precisely when he filed his worker’s compensation claim, 23 but the language of the complaint appears to imply the claim was filed the same day he was injured. 24 1 Plaintiff’s DLI claim remains open. (Id.) Plaintiff took time off due to this injury, but was 2 ultimately able to return to work with limitations. (Id.) Plaintiff alleges “several people” asked 3 him “more than once” when he was planning to retire. (Id.) Plaintiff contends this question was 4 never asked of younger employees. (Id.) On February 6, 2023, Plaintiff was “unceremoniously

5 dismissed from employment under the guise of a lay-off.” (Id.) Plaintiff contends many 6 employees with the same job title and duties were not laid off. (Id.) 7 On September 21, 2023, Plaintiff filed a complaint in this Court. (Dkt. No. 1.) Plaintiff 8 asserts claims for: 1) Retaliation, 2) Wrongful Termination in Violation of Public Policy, 3) Age 9 Discrimination under the Washington Law Against Discrimination (“WLAD”), 4) Disability 10 Discrimination under WLAD, and 5) Negligent Infliction of Emotional Distress. (Id. at 2–3.) 11 On October 23, 2023, Defendant filed a motion to dismiss for failure to state a claim 12 upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 13 No. 8.) 14 II. LEGAL STANDARD

15 On a motion to dismiss for failure to state a claim, the Court must accept as true all well- 16 pleaded factual allegations and construe the allegations in favor of the non-moving party. See 17 Wood v. City of San Diego, 678 F.3d 1075, 1080 (9th Cir. 2012). The Court need not, however, 18 assume the truth of conclusory allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 19 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 20 statements, do not suffice.”). 21 “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed 22 factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief 23 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

24 1 of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal 2 citations omitted). “Factual allegations must be enough to raise a right to relief above the 3 speculative level, on the assumption that all the allegations in the complaint are true (even if 4 doubtful in fact).” Id. The complaint must allege “enough facts to state a claim to relief that is

5 plausible on its face.” Id. at 547. 6 III. DISCUSSION

7 A. Retaliation

8 To state a claim for retaliation under Washington law, a plaintiff must make a prima facie 9 case showing: (1) the employee took a statutorily protected action, (2) the employee suffered an 10 adverse employment action, and (3) a causal link between the employee's protected activity and 11 the adverse employment action. Cornwell v. Microsoft Corp., 430 P.3d 229, 234 (Wash. 2018). 12 Defendant contends Plaintiff’s complaint fails to plead a retaliation claim because it does 13 not allege a causal connection between the filing of his DLI claim in 2021 and his termination in 14 2023. (Dkt. No. 8 at 3–4.) 15 First, Plaintiff’s complaint contains no facts concerning whether his employer was aware 16 of his DLI claim before he was terminated. “Because retaliation is an intentional act, an 17 employer cannot retaliate against an employee for an action of which the employer is unaware.” 18 Cornwell, 430 P.3d at 235–236. A decision maker must have actual knowledge that an employee 19 took a protected action in order to prove a causal connection. Id. at 236. The only allegation in 20 Plaintiff’s complaint concerning Defendant’s knowledge of his DLI claim is that Defendant 21 failed to respond to DLI’s inquiries concerning whether Defendant would continue to pay 22 Plaintiff’s medical insurance premiums after he was terminated. (Dkt. No. 1 at 2.) 23 24 1 Second, Plaintiff’s complaint contains no facts concerning the causal link between 2 Plaintiff’s DLI claim and his termination. It states only in conclusory form, “Plaintiff was 3 terminated in retaliation of exercising his rights and in violation of his statutory rights.” (Id. at 4 2.) There are no facts identifying that Defendant took action against Plaintiff because of

5 Plaintiff’s DLI claim. To the extent Plaintiff’s complaint alleges the temporal proximity between 6 his DLI claim and his termination pleads a causal link, the nearly two year gap between the filing 7 of his DLI claim and his termination is insufficient to state a claim. Cases that accept mere 8 temporal proximity between an employer's knowledge of protected activity and an adverse 9 employment action as sufficient evidence of causality to establish a prima facie case uniformly 10 hold that the temporal proximity must be “very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 11 U.S. 268, 273–274 (2001); see also Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1068 12 (9th Cir. 2002) (Gap of ten months between the protected action and the termination did not give 13 rise to an inference of causation.) 14 Accordingly, Plaintiff has failed to state a claim for retaliation.

15 B. Wrongful Discharge in Violation of Public Policy

16 In Washington, “[a]n employer may discharge an at-will employee for ‘no cause, good 17 cause or even cause morally wrong without fear of liability.’” Roe v. TeleTech Customer Care 18 Mgmt. (Colo.) LLC, 257 P.3d 586, 594–595 (Wash. 2011) (quoting Thompson v. St. Regis Paper 19 Co., 685 P.2d 1081, 1085 (Wash. 1984)). However, a narrow exception to the at-will 20 employment doctrine prohibits an employer from terminating an employee “for reasons that 21 contravene a clear mandate of public policy.” Martin v. Gonzaga Univ., 425 P.3d 837, 842–843 22 (Wash. 2018) (quoting Thompson, 685 P.2d at 1089). 23 24 1 The tort for wrongful discharge in violation of public policy has generally been limited to 2 four scenarios: “(1) where employees are fired for refusing to commit an illegal act; (2) where 3 employees are fired for performing a public duty or obligation, such as serving jury duty; (3) 4 where employees are fired for exercising a legal right or privilege, such as filing workers'

5 compensation claims; and (4) where employees are fired in retaliation for reporting employer 6 misconduct, i.e., whistle-blowing.” Gardner v. Loomis Armored, Inc., 913 P.2d 377, 379 (Wash. 7 1996) (citing Dicomes v. State, 782 P.2d 1002, 1006–1007 (Wash. 1989)). 8 If an employee's public policy tort action falls into one of the four Dicomes categories, 9 the employee establishes a prima facie case of wrongful discharge in violation of public policy 10 by showing: (1) that the discharge may have been motivated by reasons that contravene a clear 11 mandate of public policy; and (2) that the public policy linked conduct was a “significant factor” 12 in the decision to discharge the worker. Martin, 425 P.3d at 725–726 (internal citations omitted). 13 Plaintiff’s complaint does not specify which of the four Dicomes categories applies here; 14 he merely alleges he was fired for “engaging in statutorily protected conduct.” (Dkt. No. 1 at 2.)

15 The only statutorily protected conduct mentioned in Plaintiff’s complaint in his filing of a 16 worker’s compensation claim with DLI. However, Plaintiff’s complaint contains no facts 17 indicating Defendants may have fired him for filing his DLI claim, and does not contain any 18 facts concerning a causal connection, even a circumstantial one, between his DLI claim and his 19 termination. There simply are no facts alleged supporting the conclusion that the DLI claim was 20 a significant factor in the decision to discharge Plaintiff. 21 Accordingly, Plaintiff has failed to state a claim for wrongful discharge in violation of 22 public policy. 23

24 1 C. WLAD - Age Discrimination

2 To establish a prima facie case of age discrimination under WLAD, a plaintiff must 3 show: (1) he was within a statutorily protected class, (2) he was discharged by the defendant, (3) 4 he was doing satisfactory work, and (4) after his discharge, the position remained open and the 5 employer continued to seek applicants with qualifications similar to the plaintiff. Mikkelsen v. 6 Pub. Util. Dist. No. 1 of Kittitas Cnty., 404 P.3d 464, 470 (Wash. 2017). 7 Plaintiff’s complaint adequately pleads the first three elements of an age discrimination 8 claim. Plaintiff alleges he was within a statutorily protected class (individuals between the ages 9 40 and 70), that he was discharged by Defendant, and that prior to his discharge he was a “valued 10 employee” providing “exemplary service.” (Dkt. No. 1 at 2.) With respect to the final element, 11 Plaintiff contends other employees with the same job title and responsibilities were not laid off. 12 (Id.) However, Plaintiff has not set forth any facts indicating his position remained open and 13 Defendant continued to seek applicants with similar qualifications. (Id.) The only fact in 14 Plaintiff’s complaint concerning age discrimination is the allegation that uncertain unidentified

15 individuals asked him when he was planning to retire. (Id.) 16 As such, Plaintiff has not stated a claim with respect to age discrimination under WLAD.

17 D. WLAD – Disability Discrimination

18 To establish a prima facie case of disparate treatment based on disability under WLAD, a 19 plaintiff must show he was: (1) disabled, (2) subject to an adverse employment action, (3) doing 20 satisfactory work, and (4) discharged under circumstances that raise a reasonable inference of 21 unlawful discrimination. Brownfield v. City of Yakima, 316 P.3d 520, 533 (Wash. Ct. App. 22 2014). In addition, “the prohibition against discrimination because of such disability shall not 23 24 1 apply if the particular disability prevents the proper performance of the particular worker 2 involved[.]” Wash. Rev. Code § 49.60.180. 3 Plaintiff’s complaint does not set forth facts describing his disability or how such 4 disability did not prevent him from performing his employment. Plaintiff merely makes the

5 conclusory allegation that he was discharged “because of his medical disability” (Dkt. No. 1 at 3) 6 without any facts identifying circumstances supporting a reasonable inference of disability 7 discrimination. Moreover, for the reasons discussed above, the temporal proximity between 8 Plaintiff’s work injury and his termination, nearly two years, is insufficient to raise a reasonable 9 inference of disability discrimination. 10 Accordingly, Plaintiff has failed to state a discrimination claim based on disability under 11 WLAD. 12 E. Negligent Infliction of Emotional Distress

13 In Washington, to state a claim for negligent infliction of emotional distress, a plaintiff 14 must prove duty, breach, proximate cause, damage, and “objective symptomatology.” Kumar v. 15 Gate Gourmet, Inc., 325 P.3d 193, 205 (Wash. 2014) (internal citations omitted). To maintain an 16 action for negligent infliction of emotional distress, a plaintiff’s distress must be “susceptible to 17 medical diagnosis and prov[able] through medical evidence.” Id. 18 Plaintiff’s complaint alleges Defendant negligently inflicted emotional distress upon him 19 and that he suffered “severe emotional and mental distress, anguish, humiliation, embarrassment, 20 fright, mental and physical pain, discomfort and anxiety.” (Dkt. No. 1 at 3–4.) Plaintiff’s 21 conclusory allegations of emotional distress are insufficient to state a claim. “At the pleading 22 stage, bare and conclusory allegations of emotional distress unsupported by factual detail are 23 merely a “formulaic recitation of the elements of a cause of action” and are “wholly insufficient

24 1 to state a claim.” Horman v. Sunbelt Rentals Inc., Case No. C20-564 TSZ, 2020 WL 4366185, at 2 *7 (W.D. Wash. July 30, 2020) (internal citations and quotations omitted). 3 Plaintiff has also failed to plead any facts indicating his distress is susceptible to medical 4 diagnosis and provable through medical evidence. Wright v. N. Am. Terrazo, Case No. C12-

5 2065JLR, 2013 WL 441517, at *5 (W.D. Wash. Feb. 5, 2013) (plaintiff’s allegation of “severe 6 emotional distress, inconvenience, pain and suffering, humiliation, anxiety, loss of enjoyment of 7 life, [and] loss of self respect” was insufficient to plead a cause of action for negligent infliction 8 of emotional distress in the absence of medical diagnosis or objective symptomology). 9 Defendant contends Plaintiff’s negligent infliction of emotional distress claim should also 10 be dismissed as duplicative of his wrongful discharge claim. (Dkt. No. 8 at 8–9.) “[W]hen 11 brought alongside a discrimination claim, a separate claim for emotional distress is not 12 compensable when the allegations supporting the emotional distress claim are the same as those 13 underlying the discrimination claim.” Palpallatoc v. Boeing Co., Case No. 3:22-cv-5728-BJR, 14 2023 WL 2161415 at *3 (W.D. Wash. Feb. 22, 2023), citing Chea v. Men’s Wearhouse, Inc., 932

15 P.2d 1261 (Wash. Ct. App. 1997). “However, when a plaintiff alleges that non-discriminatory 16 conduct caused separate emotional injuries, he or she may maintain a separate claim for 17 negligent infliction of emotional distress.” Francom v. Costco Wholesale Corp., 991 P.2d 1182, 18 1192 (Wash. Ct. App. 2000). 19 To the extent Plaintiff’s claim for negligent infliction of emotional distress stems from 20 the same conduct as his discrimination claims, he cannot maintain this cause of action. 21 Accordingly, Plaintiff has failed to state a claim for negligent infliction of emotional 22 distress. 23

24 1 F. Damages Under Washington Wage Statutes

2 As part of his prayer for relief, Plaintiff identifies specific chapters of Washington’s 3 Revised Code that Plaintiff believes allow for an award of statutory costs and attorney fees. 4 (Dkt. No. 1 at 4.) Defendant asserts “Plaintiff’s request for damages under Washington wage 5 statutes must be dismissed.” (Dkt. No. 8 at 9.) 6 “The weight of authority provides that because a prayer for relief sets forth a remedy and 7 not a claim, a Rule 12(b)(6) motion to dismiss for failure to state a claim is not the proper vehicle 8 for striking a prayer for relief.” Jackson v. McMahon, Case No. EDCV 19-0548 SVW (PVC), 9 2020 WL 2200447, at *6 (C.D. Cal. Mar. 11, 2020), report and recommendation adopted, 2020 10 WL 3977939 (C.D. Cal. Jul. 14, 2020) (collecting cases). 11 Defendant’s motion raises significant questions as to Plaintiff’s ability to claim statutory 12 costs and attorney fees under particular state statutes. The Court, however, declines to rule on 13 Defendant’s specific request because the present motion is not the proper vehicle to consider 14 such a request. Moreover, in granting Defendant’s motion to dismiss the claims as asserted,

15 Plaintiff’s prayer for relief is effectively mooted for now. 16 G. Leave to Amend 17 “If a motion to dismiss is granted, a court should normally grant leave to amend unless it 18 determines that the pleading could not possibly be cured by allegations of other facts.” 19 Chinatown Neighborhood Association v. Harris, 33 F. Supp. 3d 1085, 1093 (N.D. Cal. 2014). 20 Because the Court believes the Complaint may possibly be cured by allegations of other facts, 21 Plaintiff is granted leave to amend to attempt to address the deficiencies identified herein. 22 23

24 1 IV. ORDER

2 Defendant’s motion to dismiss (Dkt. No. 8) is GRANTED. Plaintiff’s complaint is 3 dismissed without prejudice. Plaintiff shall have until April 2, 2024 to file an amended 4 complaint that addresses the deficiencies identified herein. If an amended complaint is not filed 5 by this deadline, the Court will enter an order dismissing the complaint with prejudice. 6 Dated this 21st day of March, 2024. 7 A 8 David G. Estudillo 9 United States District Judge

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