Lambdin v. Marriott Resorts Hospitality Corporation

Filing 25

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS re 11 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/21/2015. " Marriott's motion to dismiss is granted with respect to Counts I and II and deni ed with respect to Count III. No later than February 5, 2015, Lambdin may file an Amended Complaint with a revised Count I addressing the deficiencies noted in the present order. The Amended Complaint may include Count III, renumbered and e ither otherwise unchanged or, if Lambdin chooses, amended. Count II may not be included in an Amended Complaint." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BARTON LAMBDIN,

)
)
Plaintiff,
)
)
vs.
)
)
MARRIOTT RESORTS HOSPITALITY )
CORPORATION,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 14-00345 SOM/KSC
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
I.

INTRODUCTION.
Defendant Marriott Resorts Hospitality Corporation

(“Marriott”) moves to dismiss Plaintiff Barton Lambdin’s
Complaint for failure to state a claim upon which relief can be
granted.

The motion to dismiss is granted with respect to Counts

I and II and denied with respect to Count III.
II.

FACTUAL BACKGROUND.
Lambdin alleges that, while employed by Marriott as a

mechanic, he was injured on the job.

ECF No. 1, PageID # 3.

Lambdin says that his injury developed into a disability that
“relates to hip injuries and bilateral hip replacements.”

Id.

According to Lambdin, he gave Marriott a doctor’s note
that requested a “hoist/lift” to “minimize . . . having to work
on machinery in a lying flat position on his back.”

Id.

Lambdin

contends that Marriott did not provide the requested equipment or
any other accommodation for his disability.

Id.

Lambdin also alleges that he was written up by his
supervisor on February 21, 2013, “for having taken leave from
work due to his disability and complaining about the refusal to
accommodate his disability.”

Id.

Lambdin asserts the following claims against Marriott:
(1) disability discrimination in violation of the Americans with
Disabilities Act of 1990 (“ADA”); (2) intentional infliction of
emotional distress; and (3) retaliation in violation of the ADA.
Id., PageID # 4-6.
Marriott now moves to dismiss Lambdin’s Complaint under
Rule 12(b)(6) of the Federal Rules of Civil Procedure.

See ECF

No. 11.
III.

STANDARD.
A.

Rule 12(b)(6).

Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the court’s review is generally limited to the
contents of the complaint.

Sprewell v. Golden State Warriors,

266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100
F.3d 1476, 1479 (9th Cir. 1996).

If matters outside the

pleadings are considered, the Rule 12(b)(6) motion is treated as
one for summary judgment.

See Keams v. Tempe Tech. Inst., Inc.,

110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d
932, 934 (9th Cir. 1996).
On a Rule 12(b)(6) motion to dismiss, all allegations

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of material fact are taken as true and construed in the light
most favorable to the nonmoving party.

Fed’n of African Am.

Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).

However, conclusory allegations of law, unwarranted

deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.

Sprewell, 266 F.3d at 988; Syntex

Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Dismissal under Rule 12(b)(6) may be based on either:
(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.

Balistreri v. Pacifica Police

Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
1984)).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s

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obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”

Twombly, 550 U.S. at 555.

The complaint must “state a

claim to relief that is plausible on its face.”

Id. at 570.

“A

claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

Iqbal,

556 U.S. at 678.
IV.

ANALYSIS.
A.

Count I, Lambdin’s ADA Claim, is Dismissed.

Count I asserts an ADA violation based on two different
theories, neither of which is sufficiently alleged.
1.

Lambdin’s Disparate Treatment Claim Under the
ADA is Dismissed.

Count I includes a claim of disparate treatment in
violation of the ADA.
A plaintiff claiming discrimination in the form of
disparate treatment in violation of the ADA must show that he or
she: (1) is disabled; (2) is a qualified individual; and (3) has
suffered an adverse employment action because of his or her
disability.

See, e.g., Bates v. United Parcel Serv., Inc., 511

F.3d 974, 988 (9th Cir. 2007); Sanders v. Arneson Products, Inc.,
91 F.3d 1351, 1353 (9th Cir. 1996).

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Lambdin does not assert a plausible disparate treatment
claim.1

Under the ADA, a “disability” is defined as: “(A) a

physical or mental impairment that substantially limits one or
more major life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as having such an
impairment.”

42 U.S.C § 12102(1).

Lambdin offers insufficient

allegations regarding his alleged disability under the ADA.

He

alleges only that he “suffered a work related injury which
1

In assessing the sufficiency of Lambdin’s disparate
treatment claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, this court is cognizant that, in Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 510 (2002), the Supreme Court noted,
“The prima facie case . . . is an evidentiary standard, not a
pleading requirement.” While Lambdin is not, for the purposes of
Marriott’s motion to dismiss, strictly bound by the elements of a
prima facie case, those elements are a useful tool in assessing
whether Lambdin meets the requirement in Rule 8(a) of the Federal
Rules of Civil Procedure that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled
to relief.” (Emphasis added). A pleader is only entitled to
proceed if he or she states a plausible claim, and a claim can be
so meagerly asserted as to be rendered implausible. See Fresquez
v. Cnty. of Stanislaus, No. 1:13-cv 1897-AWI-SAB, 2014 WL
1922560, at *2 (E.D. Cal. May 14, 2014)(“[W]hile a plaintiff need
not plead facts constitut[ing] all elements of a prima facie
employment discrimination case in order to survive a motion to
dismiss, courts look to those elements to analyze a motion to
dismiss –- so as to decide, in light of judicial experience and
common sense, whether the challenged complaint contains
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”); Lindsey v. Claremont
Middle Sch., No. C 12-02639 LB, 2012 WL 5988548, at *2 n. 3 (N.D.
Cal. Nov. 29, 2012) (“[E]ven though [plaintiff] does not need to
establish prima facie cases for his or her claims at this point,
the court will look to the required elements to determine whether
the facts that are alleged state plausible claims for relief.”).
At some point, a claim may be so lacking in specificity and
information that a claimant’s entitlement to relief is reduced to
being speculative. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S.
at 555.
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developed into a disability” and that “[t]he disability relates
to hip injuries and bilateral hip replacements.”
PageID # 3.

ECF No. 1,

The court cannot discern whether he qualifies as

disabled under the ADA through substantial limitation of a major
life activity, by having a record of such impairment, or by being
regarded as having such an impairment.
It is not enough for Lambdin to state, in conclusory
fashion, that he has a disability.

Having been injured or living

with an impairment does not necessarily guarantee that one is
protected by the ADA.

As noted by the Ninth Circuit, “[t]he ADA

defines ‘disability’ with specificity as a term of art.

Hence, a

person may be ‘disabled’ in the ordinary usage sense, or even for
purposes of receiving disability benefits from the government,
yet still not be ‘disabled’ under the ADA.”
1354 n.2.

Sanders, 91 F.3d at

More is required of Lambdin to sufficiently allege a

disability under the ADA.

See, e.g., Rodriguez v. John Muir Med.

Ctr., No. C 09-0731 CW, 2010 WL 1002641, at *2 (N.D. Cal. Mar.
18, 2010) (concluding that plaintiff insufficiently pled a
disability under the ADA where plaintiff stated that she “had a
disability involving her back” but did not allege facts
suggesting substantial impairment due to her disability and did
not “illuminate the nature, severity, duration and impact of her
disability”); Kaiser v. Banc of Am. Inv. Servs., Inc., 296 F.
Supp. 2d 1219, 1221 (D. Nev. 2003) (concluding that plaintiff

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insufficiently pled his alleged disability under the ADA even
though plaintiff alleged that defendant regarded him as disabled
because “the complaint does not state that Plaintiff was regarded
as having an impairment that ‘substantially limits’ a ‘major life
activity,’ nor does it allege which major life activity is
regarded as impaired”).
Nor can the court even guess at whether Lambdin may be
a qualified individual under the ADA.

A qualified individual is

“an individual who, with or without reasonable accommodation, can
perform the essential functions of the employment position that
such individual holds or desires.”
also Bates, 511 F.3d at 989.

42 U.S.C. § 12111(8); see

Although Lambdin alleges that he is

a mechanic and that he was denied the tools necessary to
accommodate his disability, his Complaint is devoid of any
allegation relating to whether he is capable of performing the
essential functions of his position.

Lambdin’s Complaint need

not include any magical invocation of “prima face case” language
to satisfy Rule 8 requirements, but he cannot leave his opponent
and the court with no information at all about whether or how he
falls under the ADA.

The absence of allegations going to such

basic matters weighs in favor of dismissal.

See, e.g., Reyes v.

Fircrest Sch., No. C11-0778JLR, 2012 WL 5878243, at *3 (W.D.
Wash. Nov. 21, 2012) (dismissing ADA claim given absence of
allegations indicating that plaintiff was a qualified

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individual); Goodmon v. Big O Tires, Inc., No. 110CV0550 OWW DLB,
2010 WL 1416680, at *2 (E.D. Cal. Apr. 8, 2010) (same);
Rodriguez, 2010 WL 1002641, at *3 (same).
Lambdin also leaves out of his Complaint any suggestion
that he suffered an adverse employment action because of his
alleged disability.

An adverse employment action “materially

affects the compensation, terms, conditions, or privileges of . .
. employment.”

Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th

Cir. 2008) (brackets omitted).

Lambdin alleges that he was

“written up by his supervisor for having taken leave from work
due to his disability and complaining about the refusal to
accommodate his disability,” and argues in his opposition that
“[a] reasonable inference can be made that when [Lambdin] was
‘written up’ . . . he suffered an adverse employment action.”
ECF No. 16, PageID # 78-79.

However, the Complaint includes no

allegations indicating whether being written up materially
affected the compensation, terms, conditions, or privileges of
his employment.

Contrary to Lambdin’s conclusory assertions, it

is not at all clear that being written up, without more,
constitutes an adverse employment action.

See, e.g., Lloyd v.

Swifty Transp., Inc., 552 F.3d 594, 602 (7th Cir. 2009)
(“[W]ritten reprimands without any changes in the terms or
conditions of [] employment are not adverse employment
actions.”); Moore v. Marriott Int’l, Inc., No. CV-12-00770-PHX-

8

BSB, 2014 WL 5581046, at *10-11 (D. Ariz. Oct. 31, 2014)
(concluding that a warning letter stating that plaintiff may be
subject to further disciplinary action if additional violations
of company policy occurred was not an adverse employment action
because it did not cause any material adverse change in
plaintiff’s employment); Hoang v. Wells Fargo Bank, N.A., 724 F.
Supp. 2d 1094, 1104 (D. Or. 2010) (concluding that a warning
letter stating that plaintiff would be barred from obtaining a
raise if she received a final written warning was not an adverse
employment action).
Lambdin’s disparate treatment claim is woefully
lacking.
2.

The “Failure to Accommodate” Prong of Count I
is Insufficiently Pled.

The second part of Count I alleges that Marriott failed
to provide Lambdin with reasonable accommodations.
Under the ADA, an employer must make “reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an
applicant or employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the
operation of the business of such covered entity.”

42 U.S.C. §

12112(b)(5)(A); see also Kaplan v. City of N. Las Vegas, 323 F.3d
1226, 1232 (9th Cir. 2003).

As previously noted, Lambdin’s

allegations do not indicate that he is a “qualified individual
9

with a disability,” as those terms are defined in the ADA.
Absent sufficient allegations to suggest that Marriott was
required to provide Lambdin with reasonable accommodations,
Lambdin’s claim for failure to accommodate under the ADA is not
plausible.
Because the allegation of additional facts consistent
with the Complaint in this matter could cure the deficiencies in
Count I, leave to amend Count I is granted.

Lambdin is given

leave to file an Amended Complaint reasserting Count I with more
detail no later than February 5, 2015.
B.

Count II, Lambdin’s Intentional Infliction of
Emotional Distress Claim, is Dismissed With
Prejudice.

Lambdin concedes that his intentional infliction of
emotional distress claim is barred by the exclusivity provision
of Hawaii’s workers’ compensation law.
§ 386-5.

See Haw. Rev. Stat.

As noted in Yang v. Abercrombie & Fitch Stores, 128

Haw. 173 (App. 2012), the exclusivity provision in section 386-5
of Hawaii Revised Statutes bars suits by employees against
employers for alleged injuries caused by the alleged willful acts
of co-employees acting in the course and scope of their
employment.

Id. at 183.

Lambdin’s intentional infliction of

emotional distress claim is subject to this bar and must be
dismissed on that basis.

See, e.g., Souza v. Silva, Civ. No. 12-

00462 HG-BMK, 2014 WL 2452579, at *15-*16 (D. Haw. May 30, 2014);

10

Chang v. Straub Clinic & Hosp., Inc., Civ. No. 12-00617 DKW-RLP,
2014 WL 47947, at *9 (D. Haw. Jan. 7, 2014); Shim v. United Air
Lines, Inc., Civ. No. 11-00162 JMS-BMK, 2012 WL 6742529, at *6
n.5 (D. Haw. Dec. 13, 2012).
C.

Count III, Lambdin’s ADA Retaliation Claim, is
Sufficiently Pled.

A plaintiff claiming retaliation must show that: “(1)
he or she engaged in a protected activity; (2) suffered an
adverse employment action; and (3) there was a causal link
between the two.”

Pardi v. Kaiser Found. Hospitals, 389 F.3d

840, 849 (9th Cir. 2004).
Marriott argues that Lambdin’s retaliation claim does
not sufficiently describe an adverse employment action or a
casual connection between Lambdin’s engagement in a protected
activity and an adverse employment action.

ECF No. 11-1, PageID

# 41.
Contrary to Marriott’s assertions, Lambdin does
identify an adverse employment action that supports his
retaliation claim.

An adverse employment action in the

retaliation context is “any action reasonably likely to deter
employees from engaging in protected activity.”
at 850 (internal quotation marks omitted).

Pardi, 389 F.3d

This is not the same

as an adverse employment action in the discrimination context.
Judged against the standard set forth in Rule 8(a), Lambdin’s
allegation that he was written up by his supervisor for having
11

complained about Marriott’s alleged refusal to accommodate his
disability is sufficient.

Marriott’s assertion that Lambdin

“does not provide sufficient factual information of the context
and the contents of the write-up necessary for it to be
considered an adverse action” imposes a higher pleading standard
on Lambdin than applies to a retaliation claim on this motion to
dismiss.

ECF No. 11-1, PageID # 42.
The same can be said with respect to Marriott’s

argument that Lambdin fails to sufficiently plead a causal link
between his protected activity and an adverse employment action.
As Lambdin points out in his opposition, Lambdin alleges that he
was written up by his supervisor because he complained about
Marriott’s refusal to provide the equipment he requested.
is sufficient to plead a causal connection.

This

Although, as

Marriott notes, there is a time gap between the alleged request
for accommodation and the alleged write-up by Lambdin’s
supervisor, there is no authority drawing an absolute line as to
timing.

This court therefore declines to dismiss the retaliation

claim solely on the basis of that time gap.
V.

CONCLUSION.
Marriott’s motion to dismiss is granted with respect to

Counts I and II and denied with respect to Count III.

No later

than February 5, 2015, Lambdin may file an Amended Complaint with
a revised Count I addressing the deficiencies noted in the

12

present order.

The Amended Complaint may include Count III,

renumbered and either otherwise unchanged or, if Lambdin chooses,
amended.

Count II may not be included in an Amended Complaint.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 21, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Lambdin v. Marriott Resorts Hospitality Corporation, Civ. No. 14-00345
SOM/KSC; ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

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