Mallard v. Battelle Energy Alliance, LLC

Filing 15

MEMORANDUM DECISION AND ORDER granting 5 Motion to Dismiss. Any amended complaint must be filed within 30 days.. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RICHARD MALLARD,
Case No. 4:12-cv-00587-BLW
Plaintiff,
v.
BATTELLE ENERGY ALLIANCE, LLC,

MEMORANDUM DECISION AND
ORDER

Defendants.

INTRODUCTION
Before the Court is defendant’s Motion to Dismiss plaintiff’s complaint. (Dkt. 5).
The motion is fully briefed and at issue, and the Court has determined that oral argument
would not significantly assist the decisional process. Accordingly, the Court will resolve
the motion without a hearing. Having thoroughly considered the pleadings, the Court will
grant the motion, though it will allow plaintiff the opportunity to amend his complaint.
BACKGROUND
Plaintiff Richard Mallard worked in the fire department at the Idaho National
Laboratory for approximately 25 years. In early 2005, defendant Battelle Energy
Alliance, LLC began operating part of the lab. At that time, Mallard became a Battelle
employee.

MEMORANDUM DECISION AND ORDER - 1

Roughly three years before Battelle began operating the lab, Mallard contracted
meningitis. He had very high fevers and was hospitalized for several days. After
recovering, Mallard returned to work, but he noticed a few difficulties with some tasks
that he used to be able to easily perform, like calculating math in his head. Mallard saw a
doctor, who concluded that although the meningitis and high fevers had caused some
impairments, Mallard could still perform his job.
Mallard attempted to discuss the impairments with his manager, David Stonhill,
but Stonhill refused to listen; instead he placed “unreasonable restrictions” on Mallard
and, over the years, increased Mallard’s workload so significantly that it became
impossible for him to complete his work.
In mid to late 2008, Mallard complained to Battelle management, and Mallard and
Stonhill began working with Battelle’s Employee Assistance Program. Stonhill,
however, eventually stopped attending.
On February 2, 2009, Mallard was summoned to Battelle’s Human Resources
office, where he was told that Battelle suspected he had a mental illness. Human
Resources personnel then took Mallard’s access badge and required him to undergo a
limited physical assessment by the on-site physician, Dr. Johns. Dr. Johns told Mallard
that Battelle was requiring him to get a neuropsychiatric evaluation from a doctor Battelle
had selected, Dr. Theresa Ross. The same day, Battelle placed Mallard on unpaid
administrative leave and required him to fill out short-term disability paperwork.
Mallard met with Dr. Ross twice, once on March 31, 2009 and again on April 2,

MEMORANDUM DECISION AND ORDER - 2

2009. Dr. Ross opined that Mallard was capable of performing his job, although she
suggested a few accommodations. For example, she recommended that Mallard multitask less and use written reminders to perform complex tasks more efficiently.
Despite Dr. Ross’ opinion, Battelle refused to allow Mallard to return to work.
When Mallard asked about returning to work, Battelle insisted that he obtain a “Return to
Work” letter from his personal physician. Of course, Mallard’s personal physician had
never said he could not work in the first place. Also, while he was on this forced unpaid
leave, Battelle sent a letter to Mallard informing him that he might be terminated without
further notice because he had accumulated so much time off without pay.
Meanwhile, back at the lab, in Mallard’s absence, some Battelle employees were
apparently telling Mallard’s co-workers that he had psychological problems. One of
Mallard’s co-workers said he had heard that Mallard’s cheese had slipped off his cracker.
Mallard believes this is a euphemism for mental illness.
In July 2009, some five and one-half months after he was placed on administrative
leave, Mallard returned to work. The same day he returned to work, Battelle asked
Mallard to report to HR to discuss his job performance. HR required Mallard to sign a
Performance Improvement Plan, that included a description of what Mallard describes as
“supposed ‘specific performance criteria’ that were not being met.” Compl. ¶ 36. This
plan did not mention any of the accommodations Dr. Ross had recommended. Battelle
also told Mallard that he must “continue to meet with [Battelle’s] Employee Assistance
Program.” Id. ¶ 37.

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In September 2009, Mallard and his lawyer met with Battelle in an attempt to
resolve the requested accommodations, back pay, and the performance improvement
plan. These attempts were unsuccessful and on April 19, 2010,1 Mallard filed separate
charges of discrimination with the Idaho Human Rights Commission and the Equal
Employment Opportunity Commission.
Roughly eighteen months later, in September 2011, Mallard took an early
retirement, though he had hoped to finish his career at Battelle. He received right-to-sue
letters from the Idaho Human Rights Commission and the Equal Employment
Opportunity Commission (EEOC) in September 2012. He filed this action in November
2012. In his first amended complaint, Mallard alleges four claims: (1) violation of the
Americans with Disabilities Act (the ADA) (2) violation of the Idaho Human Rights Act;
(3) hostile work environment; and (4) retaliation for engaging in activity under the Idaho
Human Rights Act and the ADA.
In its motion to dismiss, Battelle attacks Mallard’s hostile work environment
claim. Battelle also attacks the remaining claims, but only to the extent such claims are
based on alleged adverse employment acts that occurred before the relevant limitations
1

The complaint says this charge was filed on April 15, 2009. The charge itself, however, shows
that it was signed on April 15 and “received” by the Idaho Human Rights Commission on April
19. See Dkt. 6. The Court will use April 19, 2010 as the filing date, as it appears plaintiff now
concedes this was the proper date. See, e.g., Casperson Aff., Dkt. 12, ¶ 16 (“My office filed a
charge of discrimination on Mallard’s behalf on or about April 19, 2010.”). See generally
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (on 12(b)(6) motion, court may consider
documents “on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the
document; (2) the document is central to the plaintiff's claim; and (3) no party questions the
authenticity of the copy attached to the 12(b)(6) motion”). Further, although there is a statute-oflimitations dispute, the four days at issue do not make a difference.

MEMORANDUM DECISION AND ORDER - 4

periods. Finally, Battelle argues that any constructive discharge claim alleged within the
complaint is barred because Mallard failed to include this charge in his administrative
complaint.
THE LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement
of the claim showing that the pleader is entitled to relief,” in order to “give the defendant
fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Supreme Court identified two
“working principles” that underlie Twombly in Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). First, the court need not accept as true, legal conclusions that are couched as
factual allegations; Rule 8 does not “unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.” Id. at 678-79. Second, to survive a motion to
dismiss, a complaint must state a plausible claim for relief. Id. at 679.
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. Twombly, 550 U.S. at 556. “Determining whether a complaint states a plausible
claim for relief will ... be a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Providing too much in the complaint may also be fatal to a plaintiff. Dismissal
may be appropriate when the plaintiff has included sufficient allegations disclosing some
absolute defense or bar to recovery. See Weisbuch v. County of L.A., 119 F.3d 778, 783,

MEMORANDUM DECISION AND ORDER - 5

n.1 (9th Cir.1997) (stating that “[i]f the pleadings establish facts compelling a decision
one way, that is as good as if depositions and other ... evidence on summary judgment
establishes the identical facts”).
A dismissal without leave to amend is improper unless it is beyond doubt that the
complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728,
737 (9th Cir. 2009) (issued two months after Iqbal).1 The Ninth Circuit has held that “in
dismissals for failure to state a claim, a district court should grant leave to amend even if
no request to amend the pleading was made, unless it determines that the pleading could
not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v.
N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not
whether plaintiff will prevail but whether he “is entitled to offer evidence to support the
claims.” Diaz v. Int’l Longshore & Warehouse Union, 474 F.3d 1202, 1205 (9th Cir.
2007) (citations omitted).

1

The Court has some concern about the continued vitality of the liberal amendment policy
adopted in Harris v. Amgen, based as it is on language in Conley v. Gibson, 355 U.S. 41, 45-46
(1957), suggesting that “a complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim. . ..”
Given Twombly and Iqbal’s rejection of the liberal pleading standards adopted by Conley, it is
uncertain whether the language in Harris v. Amgen has much of a life expectancy.

MEMORANDUM DECISION AND ORDER - 6

ANALYSIS
1.

Mallard’s Discrimination and Retaliation Claims
Mallard alleges that Battelle violated the ADA and the Idaho Human Rights Act.

Mallard’s ADA claims are subject to a 300-day2 limitations period. See 42 U.S.C. §
2000e(5)(e)(1). His Idaho Human Rights Act claims are subject to a one-year limitations
period. See Idaho Code §§ 67-5907(1), 67-5908(2).
Mallard filed his administrative complaint on April 19, 2010. Counting
backwards from this date, Mallard’s ADA claim is limited to adverse employment
decisions that took place on or after June 23, 2009. (June 23, 2009 is 300 days before
April 19, 2010). Mallard’s Idaho Idaho Human Rights Commission Act claim is limited
to adverse employment decisions that took place on or after April 19, 2009.
In moving to dismiss Mallard’s ADA and Idaho Human Rights Act claims,
Battelle focuses on adverse actions that occurred before April 19, 2009 and June 23,
2009. Mallard is plainly seeking to recover for various adverse actions before these
dates, including Battelle’s: (1) placing Mallard on unpaid administrative leave on
February 2, 2009; (2) requiring him to undergo a physical exam on February 2, 2009; and
(3) requiring him to undergo a psychological assessment on March 31 and April 2, 2009;
and (4) threatening to terminate him on May 27, 2009.

2

The statutory provision’s 300-day limit, rather than the 180-day limit, applies here because
Mallard pursued a claim before the Idaho Human Rights Commission. 42 U.S.C. § 2000e–
5(e)(1).

MEMORANDUM DECISION AND ORDER - 7

Three of these four acts occurred before both cutoff dates and are thus entirely
time-barred. See, e.g., Cherosky v. Henderson, 330 F.3d 1243 (9th Cir. 2003) (“claims
based on discrete acts are only timely where such acts occurred within the limitations
period”) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122-23 (2002)).
The fourth alleged act – the May 2009 termination threat – is actionable only with respect
to Mallard’s Idaho Human Rights Act claim, as it happened after April 15, 2009. That
threat is not actionable in relation to Mallard’s ADA claims because it happened before
June 23, 2009.
The Court will therefore grant Battelle’s motion to dismiss, as Mallard is
improperly attempting to recover on time-barred events. Of course, nothing would have
prevented Mallard from including allegations regarding these pre-limitations-period
events to provide background or context. See Morgan, 536 U.S. at 113 (employees may
use “prior [time-barred] acts as background evidence in support of a timely claim.”). But
Mallard did not include these time-barred events as mere background; he is seeking to
recover for these earlier acts. See, e.g., Am. Compl., ¶¶ 49, 53.
Mallard puts forth three arguments to revive his claims to the extent they are based
on acts occurring before the relevant cutoff dates. First, he argues that the earlier acts are
timely under the Lilly Ledbetter Fair Pay Act. Second, he argues that Battelle did not take
separate, discrete acts, but instead took a single, continuing act that did not end until well
within the applicable limitations periods. Third, Mallard says equitable tolling applies.
The Court is not persuaded by any of these arguments.

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B.

The Lilly Ledbetter Fair Pay Act

The Lilly Ledbetter Fair Pay Act of 2009 does not apply because Mallard has not
alleged a wage-discrimination claim. That is, he is not alleging that he was denied equal
pay for equal work.
Congress passed the Lilly Ledbetter Act, Pub. L. No. 11-2, 123 Stat. 5, in response
to the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S.
618 (2007). Ledbetter held that an employer’s decision to pay the female plaintiff less
than other male employees was the discriminatory act that triggered the running of the
statute of limitations to file an EEOC charge. Id. at 624-25. Thus, if the female plaintiff
failed to file within 180 or 300 days of the initial pay-setting decision, her claim would be
time-barred. Id. at 621, 628-29.
After Ledbetter was handed down, Congress swiftly amended Title VII to provide
that that each time a plaintiff receives a discriminatory paycheck, the clock for filing a
Title VII discriminatory compensation begins to run anew. See 42 U.S.C. § 2000e5(3)(A) and (B).
Mallard seeks to take advantage of the Ledbetter amendments. Most courts
addressing the issue, however – including the Third, Tenth, and D.C. Circuits – hold that
the Ledbetter Act does not apply unless the plaintiff alleges wage discrimination. See,
e.g., Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 630-31 (10th Cir. 2012) (“the
Fair Pay Act did not create a ‘limitations revolution for any claim somehow touching on
pay’”); Schuler v. PriceWaterhouseCoopers, 595 F.3d 370, 374 (D.C. Cir. 2010) (“in

MEMORANDUM DECISION AND ORDER - 9

employment law the phrase ‘discrimination in compensation’ means paying different
wages or providing different benefits to similarly situated employees”); Noel v. Boeing
Co., 622 F.3d 266, 272-73 (3d Cir. 2010) (“the plain language of the . . . [Ledbetter Act]
covers compensation decisions and not other discrete employment decisions”). But see
Coppett v. Tenn. Valley Auth., No. CV-11-S-4227-NE, 2012 WL 362901 (N.D. Ala.
Sept. 11, 2012).
The Court agrees with this conclusion based on the statutory language and
legislative history of the Ledbetter Act, as well as Justice Ginsburg’s dissent in Ledbetter.
First, regarding the statutory language, the Ledbetter Act expressly covers only
“discrimination in compensation.” 42 U.S.C. § 2000e-5(3)(A) (emphasis added).
Discrimination in compensation means “paying different wages or providing different
benefits to similarly situated employees.” Schuler, 595 F.3d at 374. Thus, the Ledbetter
Act cannot help Mallard because he is not alleging wage discrimination.
This conclusion is more complex than it would seem, however, because the
Ledbetter Act refers not only to “discrimination in compensation,” but also refers to
“other” discriminatory “practices.” 42 U.S.C. § 2000e-5(3)(A). But when the full
Ledbetter amendment is carefully read, it becomes clear that Mallard cannot rely on the
“or other practice” phrase to extend the limitations periods for his claims. This is perhaps
best illustrated by the reading the Ledbetter amendment one phrase at a time, as follows:
[1]

For purposes of this section, an unlawful employment practice occurs, with
respect to discrimination in compensation in violation of this subchapter,

MEMORANDUM DECISION AND ORDER - 10

[2] [a]

when a discriminatory compensation decision or other practice is
adopted,

[b]

when an individual becomes subject to a discriminatory
compensation decision or other practice, or

[c]

when an individual is affected by application of a discriminatory
compensation decision or other practice,

including each time wages, benefits, or other compensation is paid,
resulting in whole or in part from such a decision or other practice.
42 U.S.C. § 2000e5(3)(A) (paragraph divisions, numbering and emphasis added).
Congress did not include the paragraph divisions and numbering shown here. It
used a single, dense sentence. But, linguistically, the sentence has the distinct, numbered
phrases shown. The first phrase “tells us which claims are covered by the Act (those
alleging unequal pay for equal work) and the second phrase, including the ‘other practice’
language, tells us when those claims accrue for limitations purposes.” Almond, 665 F.3d
at 1182. Accord Noel, 622 F.3d at 273-74. As a result, the “or other practice” language
does not mean that every employer decision touching on pay – including the decisions
Mallard complains of – are covered by the Ledbetter Act. Rather, to take advantage of
the Ledbetter Act, plaintiffs must first allege “discrimination in compensation.”
This reading of the statutory language is supported by Justice Ginsburg’s dissent
in Ledbetter, as well as the Ledbetter Act’s legislative history. Both recognize that wage
discrimination is fundamentally different from other forms of discrimination because it is
hard for plaintiffs to know when pay discrimination is happening. See Ledbetter, 550
U.S. at 645 (Ginsburg, J., dissenting); H.R. Rep. No. 110-237, at 5, 6, 17. As Justice

MEMORANDUM DECISION AND ORDER - 11

Ginsburg explains, pay discrimination develops in small increments, over time and
comparative pay information is hidden from employees. “Pay disparities are thus
significantly different from adverse actions ‘such as termination, failure to promote, . . .
or refusal to hire,’ all involving fully communicated discrete acts, ‘easy to identify’ as
discriminatory. Ledbetter, 550 U.S. at 645 (Ginsburg, J., dissenting) (citing Morgan, 536
U.S. at 114); see also H.R. Rep. No. 110-237, at 6 (“While workers know immediately
when they are fired, refused employment or denied a promotion or transfer, the secrecy
and confidentiality associated with employees’ salaries make pay discrimination difficult
to detect.”)
These concerns are not present in this case. The things Mallard complains of –
such as being placed on unpaid leave or being forced to undergo physical and psychiatric
examinations – were not cloaked in secrecy. They were discrete, easily identifiable, fully
communicated acts. Mallard knew what was happening as it happened. So even though
some of these decisions ultimately impacted his pay, this does not mean he has alleged a
wage-discrimination claim covered by the Ledbetter Act.
C.

The Continuing Violations Theory

Mallard also argues that the adverse employment actions he complains of are not
separate, discrete acts, but instead consist of “one extended action” that began on
February 2, 2009, when Mallard was placed on unpaid administrative leave and did not
conclude until July 21, 2009, when Mallard returned to work. Mallard thus concludes
that his action is timely “with regard to Mallard’s unpaid administrative leave and the

MEMORANDUM DECISION AND ORDER - 12

actions it encompasses.” Resp., Dkt. 11, at 18.
Mallard’s argument is contrary to National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002). In that case, the Supreme Court explained that even if a series of
discriminatory acts are related to each other, each discrete act – by itself – “starts a new
clock for filing charges alleging that act.” Id. at 113.
Morgan gave specific guidance as to what sorts of acts are “discrete,” including:
termination; failure to promote, denial of transfer, refusal to hire, wrongful suspension,
wrongful discipline, denial of training, and wrongful accusation. Id. at 114; see also
O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006). Based on this list, it is
apparent that the acts Mallard complains of are discrete. For example, being placed on
administrative leave is similar to being wrongfully suspended. Cf. Conley v. Village of
Bedford Park, 215 F.3d 703, 710 (7th Cir. 2000) (“The suspension was a discrete act
resulting in a discrete injury to Mr. Conley.”). Similarly, being forced to undergo
physical or psychiatric examinations, being threatened with termination, being forced to
obtain a “return to work” authorization; and being placed on a performance improvement
plan are all easily identifiable and discrete. Mallard insists that these acts are more
accurately characterized as one long, continued event, but he does not offer any
persuasive explanation as to why this is so; he mainly just succeeds in showing that these
acts are related to each other. Morgan teaches that these sorts of events are separate.
Mallards’ “single-event” argument thus fails.

MEMORANDUM DECISION AND ORDER - 13

D.

Equitable Tolling3

Lastly, the Court is not persuaded by Mallard’s argument that this Court cannot
properly decide Battelle’s statute-of-limitations defense on a motion to dismiss.
According to Mallard, the Court is obligated to “go beyond the pleadings and conduct
fact finding to determine whether or not Mallard has a valid means of avoiding Battelle’s
statute of limitations defense.” Resp., Dkt. 11, at 6.
Preliminarily, Mallard is correct that a failure to timely file may be saved by
equitable tolling, waiver, or equitable estoppel. Santa Maria v. Pac. Bell, 202 F.3d 1170,
1176 (9th Cir. 2000), overruled on other grounds in Socop-Gonzalez v. INS, 272 F.3d
1176 (9th Cir. 2001). But the mere existence of these saving doctrines does not
automatically prevent the Court from granting a motion to dismiss. If the running of the
statute of limitations “is apparent on the face of the complaint, the defense may be raised
by a motion to dismiss.” See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.
1980). As the Ninth Circuit has explained, “[i]f the pleadings establish facts compelling
a decision one way, that is as good as if depositions and other expensively obtained
evidence on summary judgment establishes the identical facts.” Weisbuch v. Cnty. of
L.A., 119 F.3d 778, 783, n.1 (9th Cir. 1997). So in this case, if the complaint – read with
the required liberality – would not permit Mallard to prove that that the statute of

3

In addition to arguing that equitable tolling applies, Mallard makes passing reference to
equitable estoppel and waiver. But he does not meaningfully discuss these doctrines, or how
they would apply here. The Court will therefore not address these arguments, other than to
observe that the complaint does not allege any facts that would support their application.

MEMORANDUM DECISION AND ORDER - 14

limitations was tolled, then the Court may grant a motion to dismiss based on the running
of the limitations period. See Supermail Cargo, Inc. v. United States, 68 F.3d 1204,
1206-07 (9th Cir. 1995).
Under these authorities, if Mallard pleads facts showing that the limitations period
has expired, he must also plead facts supporting equitable tolling, or some other saving
doctrine. Plaintiffs cannot defend a motion to dismiss by generally asserting that they
might find some facts during discovery that would toll the relevant statute of limitations.
Otherwise, in practice, limitations defenses could never be decided on a motion to
dismiss – even when a plaintiff “pleads itself out of court” by alleging “all the ingredients
of an impenetrable defense . . . .” Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d
899, 901 (7th Cir. 2004).
Mallard has not pointed to any allegations that would support equitable tolling.
Courts apply this doctrine sparingly. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96
(1990). A plaintiff’s entitlement to equitable tolling depends upon (1) his diligence in
pursuing his rights; and (2) the existence of some “extraordinary circumstance” that stood
in his way and thereby prevented timely filing. Holland v. Florida, 130 S. Ct. 2549, 2562
(2010). Thus, equitable tolling may apply “in situations where the claimant has actively
pursued his judicial remedies by filing a defective pleading during the statutory period, or
where the complainant has been induced or tricked by his adversary’s misconduct into
allowing the filing deadline to pass.” Irwin, 498 U.S. at 96. Principles of equitable

MEMORANDUM DECISION AND ORDER - 15

tolling do not extend to “a garden variety claim of excusable neglect.” Irwin, 498 U.S. at
96.
Here, Mallard’s complaint does not establish his diligence or the existence of any
extraordinary circumstance that prevented a timely claim. For example, he complains
that he was placed on unpaid, administrative leave in February 2009, yet he did not file
his administrative charge until well over a year later, in April 2010. And although he
points to Battelle’s mandatory ADR process to excuse his untimely filing, he apparently
did nothing to initiate that process until September 20094 – again, well after the ADA and
the Idaho Human Rights Act limitations had expired for several of the acts he contends
were wrongful. Cf. Beck v. Battelle Energy Alliance, LLC, No. 4:12-cv-00086-BLW,
2013 WL 587902, at *3 (D. Idaho Feb. 13, 2013) (limitations period tolled where
employee alleged he participated in Battelle’s mandatory ADR program).
Mallard also says Battelle made the second step of the required ADR process –
mediation or assisted negotiation – “futile” by taking a position contrary to Mallard’s.
See Resp., Dkt. 11, at 19. Apparently, Battelle was saying it had no intention of paying
lost wages to Mallard other than through disability insurance. Mallard disagreed with
that position. But a disagreement such as this hardly makes mediation futile. The entire
point of mediation is to attempt to have an objective third party resolve differences.
Certainly, then, the parties’ disagreement about whether Battelle should pay lost wages

4

The Court will assume, for purposes of this motion only, that Mallard initiated the ADR
process in September 2009, when he and his counsel met with Mallard’s supervisor and
Battelle’s counsel. See Am. Compl. ¶ 37.
MEMORANDUM DECISION AND ORDER - 16

cannot be seen as an “extraordinary circumstance” preventing Mallard from filing a
timely claim.
In sum, Mallard’s complaint is facially defective to the extent it seeks to recover
for actions occurring before the relevant limitations periods. A 12(b)(6) dismissal is
therefore appropriate.
2.

Hostile Work Environment
Mallard has also failed to allege a plausible hostile work environment claim.
The Ninth Circuit has not explicitly recognized a claim for hostile work

environment under the ADA. See Brown v. City of Tucson, 336 F.3d 1181, 1190 (9th
Cir. 2003) (declining to decide the issue). Several other circuits, however, have
recognized hostile work environment as a cause of action under the ADA because of the
similarity between the language of the ADA and Title VII. See, e.g., Shaver v. Indep.
Stave Co., 350 F.3d 716, 719-20 (8th Cir. 2003); Fox v. Gen. Motors Corp., 247 F.3d
169, 175 (4th Cir. 2001); Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229, 233
(5th Cir. 2001). This Court has also recognized the viability of a hostile work
environment claim under the ADA. See Velasco v. Broadway Arctic Circle, LLC, No.
4:11-cv-00102-BLW, 2012 WL 2505291, at *1 (D. Idaho June 28, 2012).
To state a claim of hostile work environment, Mallard must show that: (1) he is a
qualified individual with disability; (2) he suffered from unwelcome harassment; (3) the
harassment was based on his disability or a request for accommodation; (4) the
harassment was sufficiently severe or pervasive to alter the conditions of his

MEMORANDUM DECISION AND ORDER - 17

employment and to create an abusive working environment; and (5) defendants knew or
should have known of the harassment and failed to take prompt remedial action. See
Walton v. Mental Health Ass’n, 168 F.3d 661, 667 (3d Cir. 1999) (applying Title VII
hostile work environment to a claim stated under the ADA).
Mallard’s claim fails on the fourth element. He has failed to allege facts showing
that the alleged harassment that was sufficiently severe or pervasive enough to create “a
discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993). To determine whether the alleged harassment was sufficiently severe or
pervasive, court looks at “all the circumstances, including the frequency of
discriminatory conduct; its severity; whether it was physically threatening, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (internal
quotation marks and citation omitted).
Mallard is primarily complaining about a handful of actions – the forced unpaid
leave; the physical and psychiatric exams, the threat of termination; the requested returnto-work form; and the performance improvement plan – that occurred over an
approximate five-month period. It is noteworthy that Mallard was not reporting to the
lab during most of this time because he was on leave. Forcing Mallard to take unpaid
administrative leave could theoretically create some other form of liability for Battelle,
but it is difficult to say that an employee is being subjected to a hostile working
environment during a time the employee is not reporting to the workplace.

MEMORANDUM DECISION AND ORDER - 18

Mallard also complains that his supervisor piled on too much work in the years
before he was placed on administrative leave. And, after he came back to work in July
2009, Mallard alleges that he was subjected to “unwelcome comments and gestures.”
Mallard does not specify any particular comment, other than hearing that someone at
Battelle told other employees that Mallard’s cheese had slipped off his cracker.
Considering all these alleged facts, the conduct Mallard endured in his workplace
falls far short of the severe, pervasive harassment needed to support a hostile work
environment claim. See generally Stevens v. County of San Mateo, 267 Fed. Appx. 684,
685 (9th Cir. 2008) (Ninth Circuit has “never definitively recognized an age-related
hostile work environment claim” but adding that, even if such a claim is cognizable, the
severe or pervasive requirement would still apply). Two cases, in particular, illustrate
this point: Anderson v. Reno, 190 F.3d 930 (9th Cir. 1999), overruled on other grounds
by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) and Montero v AGCO
Corp., 192 F.3d 856, 860 (9th Cir. 1999).
In Anderson, a female FBI agent “endured a host of sexually harassing incidents
between 1986 and 1994,” including being referred to by her supervisor as the “office sex
goddess,” “sexy,” “gorgeous,” and “the good little girl” instead of by name. Anderson,
190 F.3d at 933. One day, when Anderson entered a briefing room to present an arrest
plan to her fellow agents, she found that someone had drawn a pair of breasts on an easel
and titled it “Operation Cupcake.” Id. When she sought assistance, her supervisor said
in front of the assembled group, “This is your training bra session.” Id. Anderson also

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received various vulgar notes including a cartoon depicting varieties of female breasts
with her initials next to an example labeled “cranberries.” Another time, a fellow agent
patted her on the buttocks and commented that she was “putting on weight down there.”
Id. at 934.
In Montero, plaintiff was the only female employee at a parts distribution center.
Over a two-year period, one supervisor called her a “butt-kiss,” told her he was going to
spank her, rested his chin on her shoulder, grabbed her arms until she said “ouch,” and
made crude gestures. 192 F.3d at 859. Another supervisor grabbed his crotch while
speaking with her, placed his face on her bottom, told her he had sexual dreams about
her, asked if he could sit under her desk, put his hand on her chair as she sat down, put
his hands in the air as if he was going to grab her breasts, tried to bite her neck, and knelt
in front of her and tried to put his head between her knees. Id. Another employee had
pulled her pants up from behind by the belt loop, commented about the small size of his
penis, and placed notes on her desk telling Montero to dance naked on the desk or to take
off her clothes. Id.; see also Draper v. Coeur Rochester Inc., 147 F.3d 1104 (9th Cir.
1998) (female employee of mining company endured similar harassment over a two-year
period).
Mallard’s allegations do not rise to this level – or even close. Further, the Ninth
Circuit has held as a matter of law that more extreme factual situations than he alleges
were not sufficiently severe or pervasive to support hostile work environment claims. In
Sanchez v. City of Santa Ana, 936 F.2d 1027 (9th Cir.1990), for example, the court

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held that no reasonable jury could have found a [racially] hostile work
environment despite allegations that the employer posted a racially
offensive cartoon, made racially offensive slurs, targeted Latinos when
enforcing rules, provided unsafe vehicles to Latinos, did not provide
adequate police backup to Latino officers, and kept illegal personnel files
on plaintiffs because they were Latino.
Vasquez v. County of L.A., 349 F.3d 634, 643 (9th Cir. 2004) (discussing Sanchez); see
also, e.g., Kortan v. Cal. Youth Auth., 217 F.3d 1104 (9th Cir.2004) (no sexually “hostile
work environment when, among other things, a supervisor called female employees
“castrating bitches,” “Madonnas,” or “Regina”).
Based on this precedent, Mallard’s hostile work environment claim fails as matter
of law.
3.

Constructive Discharge
In his ADA claim, Mallard alleges that one of the discrete, adverse actions Battelle

took was to constructively discharge him. Battelle contends that the Court lacks
jurisdiction over any constructive discharge claim because Mallard did not include this
charge in his administrative charge. Battelle also contends that Mallard signed a release
and waiver that prevents him from bringing a constructive discharge claim.
The Court cannot consider Battelle’s defense based on the release and waiver
agreement because any defect arising from this agreement is not disclosed on the face of
the complaint. See generally Jones v. Bock, 549 U.S. 199, 215 (2007) (complaint subject
to a 12(b)(6) dismissal only when an affirmative defense appears on the face of the
complaint).

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The Court also disagrees with Battelle’s suggestion that the Court lacks
jurisdiction of the constructive discharge claim. As a general rule, claims not included in
an EEOC charge may not be considered by the district court. See B.K.B. v. Maui Police
Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002). As Battelle acknowledges, however, the
district court may nonetheless consider new claims if they are “like or reasonably related
to” the allegations contained in the EEOC charge. Id. In determining whether Mallard’s
constructive discharge claim is “like or reasonably related to” the allegations in his
administrative charge, “it is appropriate to consider such factors as the alleged basis of
the discrimination, dates of discriminatory acts specified within the charge, perpetrators
of discrimination named in the charge, and any locations at which discrimination is
alleged to have occurred.” Id. “In addition, the court should consider plaintiff’s civil
claims to be reasonably related to allegations in the charge to the extent that those claims
are consistent with the plaintiff's original theory of the case.” Id.
Mallard’s constructive discharge allegations are consistent with his original theory
of the case – namely, that Battelle discriminated and retaliated against him because of a
perceived disability. In his administrative charge, Mallard indicated that the
discrimination against him was “ongoing” and retaliatory. As such, it seems logical that
when the EEOC investigated the matter, it would have investigated the circumstances
surrounding Mallard’s resignation from Battelle.
Regardless, however, Mallard’s constructive discharge claim fails as a matter of
law. As the Ninth Circuit has explained, if “a plaintiff fails to demonstrate the severe or

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pervasive harassment necessary to support a hostile work environment claim, it will be
impossible . . . to meet the higher standard of constructive discharge.” Brooks v. City of
San Mateo, 229 F.3d 917, 930 (9th Cir. 2000). As already explained, Mallard failed to
allege a plausible hostile work environment claim. Thus, his constructive discharge
claim necessarily fails.
ORDER
IT IS ORDERED THAT:
1.

Defendant’s Motion to Dismiss (Dkt. 5) is GRANTED.

2.

Plaintiff’s third claim for relief – hostile work environment is DISMISSED
WITH LEAVE TO AMEND.

3.

To the extent Plaintiff’s complaint seeks to allege a constructive discharge
claim, such claim is DISMISSED WITH LEAVE TO AMEND.

4.

To the extent Plaintiff’s ADA claims are based on acts occurring before
June 23, 2009, such claims are DISMISSED WITH LEAVE TO
AMEND.

5.

To the extent Plaintiff’s Idaho Human Rights Act claims are based on acts
occurring before April 19, 2009, such claims are DISMISSED WITH
LEAVE TO AMEND.

6.

Any amended complaint must be filed within 30 days.

MEMORANDUM DECISION AND ORDER - 23

DATED: June 6, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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