1 2
3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 CAROLINE WILMUTH, KATHERINE CASE NO. 2:23-cv-01774-JNW 8 SCHOMER, and ERIN COMBS, ORDER 9 Plaintiffs,
10 v.
11 AMAZON.COM INC.,
12 Defendant. 13 1. INTRODUCTION 14 Plaintiffs Caroline Wilmuth, Ph.D., Katherine Schomer, and Erin Combs sue 15 Defendant Amazon.com, Inc., alleging Amazon underpays and discriminates 16 against its female employees on a systemic scale. Citing Washington state and 17 federal employment laws, they bring class- and collective-action equal pay claims 18 for themselves and all similarly situated women. The also bring medical leave and 19 retaliation claims in their own names. 20 Amazon moves to dismiss or strike their claims, arguing that the proposed 21 class—all women who worked for Amazon in covered positions—is too broad and 22 unwieldly to sustain a class- or collective-action. Dkt. No. 34. Amazon also moves to 23 1 dismiss Dr. Wilmuth’s medical leave claim because, it argues, she fails to state a 2 claim. See id.; Fed. R. Civ. P. 12(f).
3 Having considered the briefing, the relevant record, and the governing law, 4 the Court finds oral argument unnecessary. The Court finds that Amazon’s motion 5 is premature, as it cannot say from the pleadings alone that Plaintiffs’ case is so 6 hopeless as a class or collective action that it must be dismissed at the start. 7 Plaintiffs’ allegations are best viewed through the prism of a class certification 8 motion after some opportunity for discovery. Accordingly, the Court DENIES
9 Amazon’s motion. 10 2. BACKGROUND1 11 Plaintiffs allege that Amazon “has systematically paid and continues to pay 12 female employees lower compensation than it has paid and continues to pay men 13 performing substantially equal or similar work” in violation of the federal Equal 14 Pay Act (EPA) and the Washington Equal Pay and Opportunities Act (EPOA). Dkt. 15 No. 33 ¶¶ 2, 19–22; see also Dkt. No. 33 at 3, 42–43.
16 To support their putative collective and class actions under the EPA and 17 EPOA, Plaintiffs provide detailed allegations explaining Amazon’s “unitary 18 operations, centralized decisionmaking, and uniform policies” for hiring, 19 promotions, job architecture, compensation, and evaluating performance. For 20 instance, Plaintiffs allege that “Amazon has a centralized HR department . . . which 21 1 On a motion to strike or dismiss for failure to state a claim, the Court must accept 22 all well-pleaded facts as true. Petrie v. Elec. Game Card, Inc., 761 F.3d 959, 966 (9th Cir. 2014). Thus, the Court recounts only the relevant facts alleged in the operative 23 complaint. 1 implements and dispenses all of Amazon’s personnel processes, including hiring, job 2 code and level assignments, promotion, and job evaluations, all of which impact
3 Amazon employees’ compensation.” Id. ¶ 34. They claim that Amazon workers 4 charged with conducting interviews follow rigid, uniform policies and effectively 5 have no discretion in the interview process. See id. at 11–13. Dr. Wilmuth states 6 that she “participated in over 75 interviews during her time at Amazon,” and each 7 functioned the same way. Id. ¶ 41. 8 The operative complaint also provides a detailed description of the “rigid job
9 architecture” that Amazon has implemented “to provide a framework for the 10 organization of its employees” around the world. Id. ¶ 43. It asserts: 11 Amazon uses a single set of job coding/ leveling structures throughout the company, across its locations, referred to as the “Leveling 12 Guidelines.” Whether an employee is in Seattle, New York, or Mumbai, the same job architecture/ Leveling Guidelines apply. 13 Id. Plaintiffs explain how Amazon uses uniform Job Levels, “Leveling Guidelines,” 14 “job families,” and “job codes” to systematically pay women less than men for 15 performing the same or substantially similar work. 16 According to the operative complaint, Amazon’s Job Levels work like this: 17 Amazon’s HR, in conjunction with Bar Raisers, assigns each corporate 18 salaried employee a job level from Level 4 (at the bottom) to Level 12 (at the top) based on a centralized rubric that defines the characteristic [sic] 19 of each level in connection with a given job code.
20 Amazon strictly controls job level assignments. Managers do not have discretion to change an employee’s job level. If a Manager wishes to 21 change the job level for a direct report within the first six months of employment, they must do so by appealing to the Bar Raiser who had 22 been on the employee’s hiring panel. Otherwise, a Manager has to wait 23 1 at least one year and then put the employee up for a promotion in order to raise their level. 2 Id. ¶¶ 44–45. 3 Along with Job Levels, Amazon applies “job codes” to its employees; these 4 codes indicate the “work to be performed and job qualifications” for a particular job. 5 Id. ¶ 47. Amazon organizes job codes by grouping similar, or related job codes into 6 the same “job family.” Id. As with Job Levels, “Amazon’s HR, in conjunction with 7 Bar Raisers, assign job codes based on Amazon’s Leveling Guidelines.” Id. ¶ 48. 8 “Managers do not have discretion to change an employee’s job code.” Id. ¶ 49. “If 9 managers believe a job code is incorrect, they must ask Amazon’s HR to conduct a 10 job code review.” Id. According to Plaintiffs, “Amazon maintains companywide 11 Leveling Guidelines governing both job levels and job codes,” which are uniformly 12 applied across the entire company. Id. ¶ 50. 13 Plaintiffs maintain that Amazon unlawfully pays women less than men with 14 the same job code. Plaintiffs also allege that within each job family (i.e., group of 15 related job codes), Amazon assigns the lower-paying job codes to women while 16 reserving the higher-paying codes for men. Illustrating the point, Schomer, a 17 researcher for Amazon, alleges that Amazon’s centralized HR assigned her the job 18 code for “Product Manager,” while coding her male research partner as a “Research 19 Scientist.” Id. ¶ 102. Schomer’s job code led Amazon to pay her less than her male 20 research partner, even though she was more qualified and had a higher Job Level 21 than him. Id. 22 23 1 Then, when Schomer switched to a different Amazon research team, Amazon 2 coded her as a “Senior Research Manager.” Id. ¶ 103. Again, Amazon coded
3 Schomer’s male counterpart as a “Research Scientist.” Id. ¶ 104. The maximum 4 salary for Schomer’s job code was around $367,000, “while the Research Scientist 5 job code has a minimum compensation of $570,000 and tops out at approximately 6 $900,000.” Id. ¶ 105. Schomer alleges that her job code resulted in Amazon paying 7 her male comparator approximately 150 percent of her salary. Id. ¶ 104. 8 Separate from their class and collective action claims, Plaintiffs also allege
9 that Amazon discriminated and retaliated against them individually for taking 10 medical leave and for raising concerns about unequal pay and treatment. See id. at 11 38–40. In Spring 2023, Dr. Wilmuth took about a month of protected FMLA medical 12 leave because of a decline in her physical and mental health, resulting from 13 Amazon’s discriminatory practices. Id. ¶ 177. Dr. Wilmuth alleges that when she 14 took leave, Amazon HR shared private information about her discrimination 15 complaints and “troubled situation” with her coworkers, which damaged her
16 professional reputation. Id. ¶ 179–80. Indeed, she claims that while she was on 17 leave, her coworkers made comments like, “If I was her, I wouldn’t come back from 18 leave.” Id. On October 23, 2023, Dr. Wilmuth submitted a claim to “EthicsPoint,” 19 regarding this problem. Id. ¶ 181. Amazon did not address the complaint. Id. 20 On November 20, 2023, Plaintiffs filed this lawsuit. See Dkt. No. 1. Then, in 21 late-December 2023, Dr. Wilmuth took approved, short-term-disability leave. Id. ¶
22 182. Before Dr. Wilmuth left, she was asked to write a job description for her 23 1 position. Id. ¶ 182–183. About two weeks later, while Dr. Wilmuth was still on 2 disability leave, Amazon fired her. Id. ¶ 182.
3 As for Combs, Amazon lowered her performance rating from “top tier” to 4 “meets expectations” after she filed this lawsuit, which “resulted in a significant 5 loss of stock compensation” and an effective demotion. Id. ¶ 191. After filing 6 complaints about Amazon’s retaliatory behavior, she felt she had no real choice but 7 to resign. Id. ¶ 202. 8 As for Schomer, Amazon placed her in an internal “performance management
9 program” called “Focus,” which harmed her performance rating and salary. Id. ¶¶ 10 182, 189. Soon after, Amazon placed Schomer on a “Pivot” plan, which is “Amazon’s 11 equivalent of a Performance Improvement Plan.” Id. ¶ 190. 12 Despite Plaintiffs raising their concerns with Amazon about discrimination, 13 Amazon failed to take corrective action. See id. at 38–40. 14 3. DISCUSSION 15 3.1 Amazon’s motions to strike fail under the proper, Rule 12(f) standard. 16 Under Rule 12(f), a court “may strike from a pleading an insufficient defense 17 or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 18 12(f). Courts may not resolve disputed factual or legal issues when resolving 19 motions to strike. Adan v. Swedish Health Servs., Case No. 2:23–cv–01266–TL, 20 2024 WL 2398208, at *4 (W.D. Wash. May 23, 2024) (Lin, J.) (citing Whittlestone, 21 Inc. v. Handi-Craft Co., 618 F.3d 970, 973–75 (9th Cir. 2010) (“We ... hold that Rule 22 12(f) does not authorize district courts to strike claims for damages on the ground 23 1 that such claims are precluded as a matter of law.”)). And “[a]s with motions to 2 dismiss,” on a motion to strike, “the Court takes the plaintiff's allegations as true
3 and must liberally construe the complaint in the light most favorable to the 4 plaintiff.” Wysocki v. Zoom Techs. Inc., Case No. 3:22–cv–05453–DGE, 2024 WL 5 1139094, at *5 (W.D. Wash. Mar. 15, 2024) (Estudillo, J.) (citing Farm Credit Bank 6 of Spokane v. Parsons, 758 F. Supp. 1368, 1371 n.4 (D. Mont. 1990) (citing 2A 7 Moore’s Federal Practice ¶ 12.21[3]))). 8 “Rule 12(f) motions to strike are generally disfavored because the motions
9 may be used as delay tactics and because of the strong policy favoring resolution on 10 the merits.” Adan, 2024 WL 2398208, at *4. Motions to strike class allegations from 11 pleadings are particularly disfavored “because the shape and form of a class action 12 evolves only through the process of discovery.” Id.; Hoffman v. Hearing Help 13 Express, Inc., No. C19-5960, 2020 WL 4729176, at *2 (W.D. Wash. Mar. 27, 2020) 14 (Leighton, J.) (same); Patrick v. Ramsey, Case No. C23-0630-JLR, 2023 WL 15 6680913, at *2 (W.D. Wash. Oct. 12, 2023) (Robart, J.) (same). “[T]he Ninth Circuit
16 has repeatedly recognized the importance of discovery for resolving questions of 17 class certification.” Id. (citing Vinole v. Countrywide Home Loans, Inc., 571 F.3d 18 935, 942 (9th Cir. 2009)); cf. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) 19 (“Even after a [class] certification order is entered, the judge remains free to modify 20 it in light of subsequent developments in the litigation.”). 21 “While some district courts in the Ninth Circuit permit class allegations to be
22 struck at the pleadings stage, most courts decline to strike class allegations prior to 23 class certification motions and discovery.” Johnson v. Metro-Goldwyn-Mayer Studios 1 Inc., No. C17-541 RSM, 2017 WL 3313963, at *7 (W.D. Wash. Aug. 3, 2017) 2 (Martinez, J.) (compiling cases); Meyer v. Nat’l Tenant Network, Inc., 10 F. Supp. 3d
3 1096, 1104 (N.D. Cal. 2014) (“’[I]t is in fact rare to [strike class allegations] in 4 advance of a motion for class certification.” (quoting Cholakyan v. Mercedes–Benz 5 USA, LLC, 796 F. Supp. 2d 1220, 1245 (C.D.Cal. 2011)). District courts—especially 6 in this district—regularly find that “a motion for class certification is a more 7 appropriate vehicle for arguments about class propriety.” Hoffman, 2020 WL 8 4729176, at *2 (quoting Boddie v. Signature Flight Support Corp., No. 19-cv-03044-
9 DMR, 2019 WL 3554383, at *3 (N.D. Cal. Aug. 5, 2019)); see also Patrick, 2023 WL 10 6680913, at *2 (explaining that courts should rarely dismiss class action allegations 11 at the pleadings stage); Dorian v. Amazon Web Servs., Inc., No. C22-269, 2022 WL 12 3155369, at *2 n.1 (W.D. Wash. Aug. 8, 2022) (Chun, J.) (stating that courts 13 typically review class allegations on motions for certification, not on motions to 14 strike). Thus, while striking class allegations may be appropriate in some, limited 15 cases, “the better course is to deny [such relief]” and to allow discovery to unfold.
16 Hoffman, 2020 WL 4729176, at *2 (quoting In re Wal-Mart Stores, Inc. Wage & 17 Hour Litig., 505 F. Supp. 2d 609, 615 (N.D. Cal. 2007) (internal quotation and 18 citation omitted)). 19 When a defendant moves to strike class allegations from a complaint, the 20 defendant “properly” bears the “burden of proving that the class is not certifiable.” 21 Adan, 2024 WL 2398208, at *4 (quoting Wysocki, 2024 WL 1139094, at *4 (quoting
22 Bates v. Bankers Life & Cas. Co., 993 F. Supp. 2d 1318, 1340–41 (D. Or. 2013) 23 (emphasis in original))). 1 3.1.1 Amazon has failed to show that the class is not certifiable under Rule 23. 2 Amazon moves to strike Wilmuth’s class allegations related to her EPOA 3 claim, arguing that the proposed class cannot be certified under Rule 23 because 4 there is a conflict between the class representatives and the putative class.2 5 Amazon also argues that common questions of law and fact are absent, and that 6 individualized inquiries defeat predominance. Plaintiffs argue to the contrary and 7 cite two, recently certified class actions as persuasive authority that a class may be 8 certified under their case theory and the facts here: Ellis v. Google, LLC, Case No. 9 CGC-17-561299, 2021 Cal. Super. LEXIS 158293 (Cal. Sup. Ct. May 27, 2021) and 10 Rasmussen v. Walt Disney Co., Case No.: 19-STCV-10974, LEXIS 6784 (Cal. Sup. 11 Ct. Jan. 30, 2024). In those cases, California courts certified classes like the 12 proposed class here to pursue claims under California’s Equal Pay Act—a statute 13 14
15 2 Rule 23(a) allows the Court to certify a class if it meets these requirements:
16 (1) Numerosity: “the class is so numerous that joinder of all members is impracticable”; 17
(2) Commonality: “there are questions of law or fact common to the 18 class”;
19 (3) Typicality: “the claims or defenses of the representative parties are typical of the claims or defenses of the class”; and 20
(4) Adequacy: “the representative parties will fairly and adequately 21 protect the interests of the class.”
22 Fed. R. Civ. P. 23(a)(1)–(4); Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542 (9th Cir. 2013). 23 1 substantially similar to Washington’s EPOA. Compare RCW 49.58.020(1), (2) with 2 Cal. Labor Code § 1197.5(a).
3 At this early stage in the case, the Court must accept the facts as pled by 4 Plaintiffs, and on this record, the Court cannot say from the pleadings that this case 5 “cannot possibly move forward on a classwide basis[.]” Manning v. Boston Med. Ctr. 6 Corp., 725 F.3d 34, 59 (1st Cir. 2013); Patrick, 2023 WL 6680913, at *3 (denying 7 motion to strike class allegations; “This case is in its earliest stages . . . . [The court] 8 cannot at this time conclude that the class is uncertifiable as a matter of law.”). If
9 anything, Ellis and Rasmussen show that Plaintiffs’ theory of liability is suitable for 10 class treatment. Accordingly, the Court will not “delete” the complaint’s class 11 allegations. See Manning, 725 F.3d at 59. 12 3.1.2 Amazon’s remaining arguments in support of its motion to strike violate the Rule 12(f) standard. 13 Amazon’s remaining arguments are not tenable under Rule 12(f) because 14 they improperly rely on facts outside the complaint, ask the Court to draw 15 inferences in Amazon’s favor, and ask the Court resolve factual and legal disputes. 16 See Adan, 2024 WL 2398208, at *4 (On a Rule 12(f) motion, “court[s] should not 17 resolve disputed and substantial factual or legal issues.”); see also Whittlestone, 618 18 F.3d at 973–75. 19 For example, Amazon asks the Court to strike Plaintiffs’ EPA collective- 20 action allegations because Plaintiffs fail to “plead facts to show that they were 21 ‘together the victims of a single decision, policy, or plan.’” Dkt. No. 34 at 25. But the 22 complaint contains detailed factual allegations about Amazon’s uniform and 23 1 mandatory policies, which the Court must accept as true, and it explains how those 2 policies result in Amazon systematically paying women less than men for the same
3 work. Amazon acknowledges these allegations even as it discounts Plaintiffs’ 4 claims, which the Court views as a not-so-silent admission that striking Plaintiffs’ 5 collective action allegations would be improper. Dkt. No. 34 at 18 (referencing 6 Plaintiffs’ allegations about Amazon’s “centralized rubric” for assigning job levels; 7 its “forced ranking system”; its “standardized promotion process”; and its pay- 8 determining algorithm).
9 Next, Amazon claims the “single establishment” rule precludes Plaintiffs’ 10 putative collective and class actions as a matter of law. Dkt. No. 34 at 21. The Court 11 rejects this argument too, as it seeks resolution of factual and legal disputes on a 12 Rule 12(f) motion to strike. 13 The single establishment rule comes from the EPA’s language: 14 No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees 15 are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he 16 pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, 17 and responsibility, and which are performed under similar working conditions[.] 18 29 U.S.C. § 206(d)(1) (emphasis added). The EPA does not define the word 19 “establishment.” 29 C.F.R. § 1620.9. “[H]owever, in pre-[EPA] cases the Supreme 20 Court construed establishment to refer to a ‘distinct physical place of business,’ not 21 ‘an entire business or enterprise which may include several separate places of 22 business.’” Winther v. Portland, Civ. No. 91–1232–JU, 1992 WL 696529, at *2 (D. 23 1 Or. June 10, 1992) (quoting A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 496 (1945) 2 (construing “retail establishment” exemption of the Fair Labors Standards Act, 29
3 U.S.C. § 213(a)(2))). The Secretary of Labor adopted this interpretation “for the 4 purposes of administering the [EPA].” See id. (citing Foster v. Arcata Assocs., Inc., 5 772 F.2d 1453, 1464 (9th Cir. 1985) overruled on other grounds by Kennedy v. Allied 6 Mut. Ins. Co., 952 F.2d 262, 266–67 (9th Cir. 1991)); see also 29 C.F.R. § 1620.9 7 (defining “establishment”). 8 The regulation interpreting the term “establishment,” acknowledges that an
9 establishment may consist of multiple geographic locations under the EPA. 10 29 C.F.R. § 1620.9(b). For instance, the regulation notes that a company with 11 multiple locations may be considered one “establishment” when “a central 12 administrative unit [] hire[s] all employees, set[s] wages, and assign[s] the location 13 of employment,” or when “employees [] frequently interchange work locations.” Id. 14 The regulation refers to these situations as “unusual circumstances.” Id. While they 15 may have been unusual when the EPA was passed, these are not so unusual in
16 today’s work environment. 17 Recognizing this development, courts apply a “functional approach” rather 18 than a strict, geographical approach when deciding whether multiple locations may 19 constitute an “establishment” under the EPA. Winther, 1992 WL 696529, at *3. To 20 engage in this analysis, courts consider facts developed through discovery. See id.; 21 see also Grumbine v. United States, 586 F. Supp. 1144, 1151 (D.D.C. 1984) (“In
22 order to determine what comparisons between and among employees should be 23 made for Equal Pay Act purposes, using the standard of function rather than that of 1 mere geography, the Court now turns to the specific facts of this case.”). Thus, the 2 Court cannot decide this issue on Amazon’s pre-answer motion to strike—especially
3 considering the Court’s duty to construe and apply the EPA broadly so that it may 4 fulfill its purpose of eliminating “all wage discrimination based on sex.” Grumbine, 5 586 F. Supp. at 1146; see Corning Glass Works v. Brennan, 417 U.S. 188, 208 (1974) 6 (“[The EPA] is broadly remedial, and it should be construed and applied so as to 7 fulfill the underlying purposes which Congress sought to achieve.”); Hein v. Oregon 8 Coll. of Educ., 718 F.2d 910, 913 (9th Cir. 1983) ( “[The EPA] embodies the
9 deceptively simple principle that ‘employees doing equal work should be paid equal 10 wages, regardless of sex.’”) (quoting H.R.Rep. No. 309, 88th Cong., 1st Sess. 2, 11 reprinted in 1963 U.S. Code Cong. & Ad. News 687, 688)). 12 Turning to Plaintiffs’ putative class action under the EPOA, the single 13 establishment rule does not apply to that claim. The relevant EPOA provision, 14 RCW 49.58.020, does not use the term “establishment” or otherwise implement a 15 “single establishment” rule. Instead of the term “establishment, the statute uses the
16 term “employer.” RCW 49.58.020. Amazon cites no precedent to support 17 substituting the word “employer” for the word “establishment.” So the Court will 18 not read the term “establishment” into the code; instead, the Court will presume 19 that the statute means what it says. See Satterfield v. Simon & Schuster, Inc., 569 20 F.3d 946, 951 (9th Cir. 2009) (quotation omitted) (“The preeminent canon of 21 statutory construction requires [courts] to presume that the legislature says in a
22 statute what it means and means in a statue what it says.”). 23 1 3.2 Dr. Wilmuth states plausible claims under the FMLA and WPFMLA. Rule 12(b)(6) governs Amazon’s motion to dismiss Dr. Wilmuth’s FMLA and 2 WPFMLA claims. Fed. R. Civ. P. 12(b)(6). “A Rule 12(b)(6) motion tests the legal 3 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Courts 4 may dismiss a case under Rule 12(b)(6) “where there is no cognizable legal theory” 5 that applies to the facts alleged, or where there is “an absence of sufficient facts 6 alleged to support a cognizable legal theory.” Id. “To survive a motion to dismiss, a 7 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 8 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 9 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for relief is 10 facially plausible when “the plaintiff pleads factual content that allows the court to 11 draw the reasonable inference that the defendant is liable for the misconduct 12 alleged.” Id. The Rule 12(b)(6) standard requires the court to take the factual 13 allegations in the complaint as true and construe them in the light most favorable 14 to the plaintiff. Malibu Textiles, Inc. v. Label Lane Int’l, Inc., 922 F.3d 946, 951 (9th 15 Cir. 2019). 16 17 3.2.1 Dr. Wilmuth states a plausible FMLA interference claim. 18 Dr. Wilmuth alleges an FMLA interference claim. “The FMLA provides a 19 cause of action for an employee whose employer has violated the statute by 20 interfering with, restraining, or denying the employee’s attempt to exercise ‘any 21 right provided under this subchapter.’” Martinez Patterson v. AT&T Servs. Inc., 22 23 1 Case No. C18-1180-RSM, 2021 WL 3617179, at *11 (W.D. Wash. 2021) (Martinez, 2 J.) (quoting 29 U.S.C. § 2615(a)(1)).
3 Courts interpret FMLA interference claims broadly. Martinez Patterson, 2021 4 WL 3617179, at *11. The term “interference” includes “not only denial of FMLA 5 rights, but also instances where an employer discouraged an employee from using 6 FMLA leave, retaliated against an employee for exercising or attempting to exercise 7 FMLA rights, or ‘otherwise caused the employee to suffer an adverse employment 8 action as a consequence of taking FMLA leave.’” Id. (quoting Bushfield v. Donahoe,
9 912 F. Supp. 2d 944, 955 (D. Idaho 2012) (citing Bachelder v. Am. W. Airlines, Inc., 10 259 F.3d 1112, 1125, n. 11 (9th Cir. 2001))). 11 “The elements of a FMLA interference claim are (1) an entitlement to FMLA 12 leave; (2) an adverse action by Plaintiff’s employer, which interfered with Plaintiff's 13 right to take FMLA leave; and (3) a showing that the employer's adverse action was 14 related to the exercise, or attempt to exercise, FMLA rights.” Id. (citing Bachelder, 15 259 F.3d at 1124–26). Regarding the third element, “[t]he Ninth Circuit takes an
16 expansive view of what constitutes an adverse employment action.” Bushfield, 912 17 F. Supp. 2d 944. Courts have “interpreted such actions to include lateral transfers, 18 unfavorable job references, changes in work schedules, or any other action that 19 would be reasonably likely to deter employees from engaging in protected activity.” 20 Id. (citing Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir.2000)). 21 Here, Dr. Wilmuth alleges she was fired, in part, because she took protected
22 leave. Amazon acknowledges this allegation, Dkt. No. 34 at 27 (citing Dkt. No. 33 23 ¶ 184), but argues that Dr. Wilmuth’s interference claim fails because her 1 allegations cannot establish causation, see id. Specifically, Amazon maintains that 2 the seven-month period between Dr. Wilmuth’s protected leave and termination is
3 too long, as a matter of law, to support causation. Id. 4 Upon reviewing the precedent that Amazon cited to support its argument, 5 Swan v. Bank of Am., 360 Fed. App’x. 903 (9th Cir. 2009), the Court is not 6 persuaded. In Swan, the Ninth Circuit concluded on summary judgment that the 7 only evidence offered to support causation was the four-month period between the 8 plaintiff’s protected leave and termination. 360 Fed. App’x. at 906. The court held
9 that timing—standing alone—was not enough to support causation, reasoning that 10 the plaintiff’s termination was “too remote in time [from her protected leave] to 11 support a finding of causation premised solely on temporal proximity.” Id. (emphasis 12 added)). 13 The allegations here are different—Dr. Wilmuth does not rely solely on the 14 timing of a single retaliatory act to support her claim. Rather, her factual 15 allegations illustrate how her use of protected leave continued to cause problems for
16 her months after she returned. Indeed, Dr. Wilmuth filed a complaint related to her 17 Spring-2023 FMLA leave four months after she returned. Dkt. No. 33 ¶ 181. She 18 claims Amazon ignored it. Id. 19 Likewise, Dr. Wilmuth alleges that Amazon HR improperly shared private 20 information related to her medical leave with her new supervisor, who then shared 21 that information with her coworkers, damaging her reputation and likely
22 embarrassing her. See id. ¶ 179; see also id. ¶ 180–81. Specifically, Amazon HR told 23 her new supervisor that she was coming “from a troubled situation” and that 1 “Amazon ha[d] the receipts on her.” Id. ¶ 179. Amazon’s use of the slang “receipts” 2 implies that Amazon HR improperly shared detailed, specific information related to
3 Dr. Wilmuth’s “troubled situation” with her coworker. That reasonable inference is 4 bolstered by Dr. Wilmuth’s allegation that her coworkers had somehow learned 5 about the circumstances surrounding her FMLA leave and made comments about it 6 like, “If I was her, I wouldn’t come back from leave.” Id. ¶ 180. 7 Amazon’s choice to share this private information related to Dr. Wilmuth’s 8 leave with its employees—as well as Dr. Wilmuth’s October-2023 complaint—
9 illustrates that Dr. Wilmuth’s FMLA leave continued to pose problems for her after 10 she returned to work.3 11 Further, while Amazon makes much of the seven-month gap between Dr. 12 Wilmuth’s 2023 leave and her 2024 termination, Dr. Wilmuth alleges facts showing 13 that Amazon had planned to fire her earlier, in 2023. See id. ¶ 183 (alleging that 14 Amazon asked Dr. Wilmuth to write her job description in 2023, which it planned to 15 use for a job vacancy announcement).
16 In sum, Amazon’s attacks on the merits of Dr. Wilmuth’s FMLA interference 17 claim are misplaced in the context of a Rule 12(b)(6) motion. Dr. Wilmuth has 18 plainly stated a plausible claim; that Amazon thinks little of its merits is not 19 enough to justify dismissal. 20
21 3 The Court also notes that Amazon’s information-sharing could constitute a separate adverse employment action in itself. See Bushfield, 912 F. Supp. 2d 944. 22 But because the Parties did not argue this point, the Court makes no further findings on it. 23 1 3.2.2 Dr. Wilmuth alleges a plausible FMLA retaliation claim. Dr. Wilmuth also alleges FMLA retaliation. “[T]he FMLA makes it unlawful 2 for employers to retaliate or discriminate against a person for opposing a violation 3 of their FMLA right to leave.” Martinez Patterson, 2021 WL 3617179, at *11 (citing 4 29 U.S.C. § 2615(a)(2)); Sanders v. City of Newport, 657 F.3d 772, 777 (9th Cir. 5 2011)). To establish a prima facie FMLA retaliation claim, Dr. Wilmuth must allege 6 facts showing that: “(1) she availed herself of a protected right under the FMLA; (2) 7 she was adversely affected by an employment decision; and (3) there is a causal 8 connection between the two actions.” West v. Alaska Airlines, Inc., Case No. 3:18-cv- 9 00102-JMK, 2020 WL 8175608, at *5 (D. Alaska Nov. 9, 2020); see also Crawford, 10 983 F. Supp. 2d at 1269 (citing Sanders 657 F.3d at 777). 11 Dr. Wilmuth alleges that Amazon terminated her employment about a month 12 after she filed this lawsuit, which asserts an FMLA claim against Amazon. Id. 13 ¶ 184. The other named Plaintiffs allege similar negative consequences upon filing 14 this lawsuit. See id. at 42–45. The Court finds that the timing of Dr. Wilmuth’s 15 termination alone is enough state a plausible FMLA retaliation claim. See 16 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir.2002) (in the case 17 of unlawful employment retaliation, “causation can be inferred from timing alone 18 where an adverse employment action follows on the heels of protected activity.”). 19 20 3.2.3 Dr. Wilmuth’s WPFMLA claim survives Amazon’s motion to dismiss. 21 The WPFMLA “mirrors its federal counterpart and provides that courts are 22 to construe its provisions in a manner consistent with similar provisions of the 23 1 FMLA.” Crawford, 983 F. Supp. 2d at 1269 Gnternal quote omitted). Amazon makes
9 no separate or distinct arguments for dismissing Dr. Wilmuth’s WPFMLA claim.
3 Accordingly, the Court finds that the same allegations discussed above support 4 Wilmuth’s WPFMLA claim. Thus, dismissal is inappropriate here too.
5 A, CONCLUSION
G In sum, the Court DENIES Amazon’s Motion to Dismiss and/or Strike, Dkt.
7 No. 34. The Court also DENIES as moot Amazon’s Motion to Stay or Bifurcate Class
8 and Collective Discovery, Dkt. No. 47, because it asked the Court to relieve Amazon
certain discovery obligations while its Motion to Dismiss and/or Strike was
19 || pending. 11 12 Dated this 12th day of December, 2024.
13 14 Je Jamal N. Whitehead 15 United States District Judge 16 17 18 19 20 21 22 23