Washburn et al v. Gymboree Retail Stores, Inc. et al
Filing
95
ORDER Granting in Part Defendants' 52 Motion for Summary Judgment, by Judge Robert S. Lasnik. (CL)
1
2
3
4
5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
6
7
KERRY and MICHAEL WASHBURN,
Case No. C11-822RSL
8
Plaintiffs,
9
10
11
ORDER GRANTING IN PART
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
v.
GYMBOREE RETAIL STORES, INC., et
al.,
Defendants.
12
13
14
This matter comes before the Court on Defendants’ motion for summary
15
judgment (Dkt. # 52). For the reasons set forth below, the Court GRANTS the motion
16
IN PART.1
I. BACKGROUND
17
Ms. Washburn was hired by Defendant Fran Anyan in April 2008 to work as an
18
19
20
entry level sales associate at Defendant Gymboree Retail Stores’ South Hill Mall
location. See Dkt. # 68 at ¶ 5. Six months later, she was promoted to assistant manager
at that store. Id. The position required her to work around 20 hours per week with open
21
availability. Dkt. # 69-2 at 8. In April 2009, Ms. Washburn was asked to transfer to a
22
23
new location at the Tacoma Square Mall. Dkt. # 68 at ¶ 5. She agreed, as did Ms.
Anyan, who became the manager, and another employee, Defendant Angie Cochenour,
24
25
26
1
The Court also GRANTS Plaintiffs’ unopposed “Motion to Accept Filing” (Dkt. # 72).
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 1
1
who was promoted to sales lead. Id. As she later explained, she wanted to continue
2
working with Ms. Anyan and Ms. Cochenour. See Dkt. # 69-2 at 9. She considered
3
them a “close-nit” team, id. at 11, of “working friends,” Dkt. # 68 at ¶ 22.
In March 2009, Ms. Washburn was diagnosed with multiple sclerosis. Dkt. # 68
4
5
at ¶ 6. Shortly thereafter, she told Ms. Anyan of her condition, id. at ¶ 8, and let her
6
know that she would need to take time off and wanted to “process an FMLA claim,” id.
7
at ¶ 15. According to Ms. Washburn, rather than processing her claim, “Ms. Anyan
8
9
10
11
indicated I did not need FMLA benefits because she would give me any time off I
needed.”2 Id. at ¶ 9. Ms. Washburn concedes that she kept that alleged promise. Dkt. #
69-2 at 24 (“They did not deny me [any leave] I requested off.”). On or about March 19,
2009, Ms. Washburn asked for time off because of her condition. Dkt. # 68 at ¶ 15. Ms.
Anyan allowed her all the time she requested. Id. In June and September, Ms.
12
Washburn requested time off to care for her daughter. Id. at ¶ 17. Again, her request
13
14
15
16
17
was granted. Id. at ¶ 17. On or about October 16, she requested time off and, for the
first time, provided a doctor’s note. See id. at ¶ 20; Dkt. # 69-22 at 1 (the note). Ms.
Anyan gave her the time. Dkt. # 68 at ¶ 20. On October 27, she requested several weeks
off and provided another note. Id. at ¶ 24; Dkt. # 69-22 at 2 (the note). Again, her
request was granted.3 Dkt. # 68 at ¶ 24. On December 17, she asked for an additional
18
19
20
21
22
23
2
Ms. Anyan disputes Ms. Washburn’s recollection of much of the substance of her
claims. For example, Ms. Anyan states that, after Ms. Washburn told her of her condition, she
told Ms. Washburn of her FMLA rights, showed her in the employee handbook where those
rights were outlined, provided her with the contact information for Gymboree’s benefits
department, and directed her to call corporate if she wanted to take advantage of those rights.
See Dkt. # 69-5 at 13–14. For present purposes, however, the Court “must draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility determinations or
weigh the evidence.” Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150 (2000). The
Court therefore relies on Ms. Washburn’s account.
24
3
25
According to Ms. Washburn, she nevertheless asked Ms. Anyan if she could attend an
October 28 store meeting. Dkt. # 68 at ¶ 26. She also asked Ms. Anyan if she could drive her
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 2
1
two weeks off, supported by a note, Dkt. # 69-22 at 4, and informed Ms. Anyan that she
2
might need additional time. Dkt. # 68 at ¶¶ 40–41. Again, she received all the time she
3
requested. See id. at ¶ 44.
On December 28, Ms. Washburn called Ms. Anyan to let her know that she had
4
5
another doctor’s appointment scheduled for January 6, 2010. Id. at ¶ 46. The Court
6
infers from Ms. Washburn’s declaration that she told Ms. Anyan during that phone call
7
that she would not be returning to work prior to her appointment. Id. at ¶ 45. Afterward,
8
9
10
11
Ms. Washburn received a voice mail from April Macdonald, who worked in Gymboree’s
benefits department, stating that she wished to talk to Ms. Washburn about her FMLA
rights. See id. at ¶ 46. According to Ms. Washburn, Ms. Anyan later told her that she
had called the benefits department to inform them of Ms. Washburn’s situation. Id. at
¶ 47. After exchanging several letters and missed calls,4 Ms. Washburn faxed Ms.
12
Macdonald a doctor’s note on January 8 to support her request for FMLA leave. Id. at ¶
13
14
15
16
52. The note specified that she needed a minimum of two weeks off. Dkt. # 69-22 at 5.
Ms. Macdonald responded the same day, informing Ms. Washburn via a faxed letter that
Gymboree had approved her request for FMLA leave. Dkt. # 68 at ¶ 53; Dkt. # 69-26
(approval letter). That letter stated clearly that leave had been approved through January
17
20 but that Ms. Washburn could extend her leave through March 10, 2010, with proper
18
documentation. Dkt. # 69-26 at 1. It further noted that Ms. Washburn would not be
19
permitted to return to work without a note from her health care provider. Id.
20
In the weeks that followed, Ms. Washburn submitted several notes to support
21
requests for extensions of her leave. See Dkt. # 69-22 at 6–7. The last of these was
22
23
home after the meeting. Id. Ms. Anyan agreed to both requests. See id. at ¶ 27.
24
4
25
The Court notes that Ms. Washburn believes that the letters requesting verification of
her condition and need for time off were themselves offensive. Dkt. # 68 at ¶¶ 48–52.
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 3
1
dated January 29, 2010. Id. at 7. It justified an extension through February 12, 2010.
2
Id. at 7; see Dkt. # 69-26 at 9.
In the meantime, Ms. Washburn contacted corporate about another issue: her
3
4
request that Gymboree “put an end to the poor treatment and retaliation [she was]
5
experiencing from [Ms. Anyan] and [Ms. Cochenour].” Dkt. # 69-23 at 2. In a letter
6
sent in early February 2010, Ms. Washburn outlined to Defendant Lana Rackley, her
7
district manager, the mistreatment she allegedly endured after she began requesting time
8
9
off: being asked by Ms. Anyan to step down as an assistant manager, being glared at by
Ms. Cochenour, and having a file cabinet door slammed shut in her presence. Id.
After receiving the letter, Ms. Rackley called Ms. Washburn. Dkt. # 68 at ¶ 59.
10
11
During the call, Ms. Washburn further detailed her alleged mistreatment. Though she
conceded that no one ever called her names or taunted her for having MS, she explained
12
that, beginning in October, Ms. Washburn “noticed a very real change in how both
13
14
15
16
Anyan and Cochenour treated [her]”—that “what was once a cordial and friendly
relationship” had become “an icy and at times overtly hostile relationship.” Id. at ¶ 22.
She gave the following examples: “they complained outwardly . . . about what they felt
was ‘extra’ work they had to do because I was off”; they no longer included her in their
17
personal conversations; and they “did everything possible to avoid [her,] including
18
leaving the back office when I would walk in, walk away from the front desk when I
19
would walk up, etc.” Id.
20
She also told Ms. Rackley that Ms. Anyan had repeatedly urged her to step down
21
from her position, telling her that “she didn’t want to lose me as a manager, and that I
22
was a rock,” but that she and Ms. Rackley “felt that I would need to step down.”5 E.g.,
23
5
25
Ms. Washburn concedes that she was the first to bring up the idea of her stepping down
to a sales position. Dkt. # 69-26 at 16. She also concedes that she had told at least one of her
treating physicians in November 2009 that she was planning to quit her job by the end of the
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 4
24
1
Dkt. # 69-26 at 15. She says she told Ms. Rackley that Ms. Anyan had told her on
2
several occasions that her taking time off “makes her team weak and she has to do what
3
is right for the store and the company”—urge Ms. Washburn to accept a demotion to
4
sales lead. Dkt. # 68 at ¶¶ 28, 31.
5
Ms. Washburn told Ms. Rackley that this treatment continued into November and
6
December—that Ms. Anyan and Ms. Cochenour “were constantly complaining about
7
having to do the extra work I did, such as dust the store . . . and cash register audits,”
8
9
10
11
ignoring her, or treating her rudely. Id. at ¶ 38. She also complained that when she
would return to work from her medical leaves, she would find “various things in disarray
that were not being done in [her] absence, dusting and financial paperwork were only a
few examples.” Id. And, she explained how things really “came to a head” in midDecember. Id. at ¶ 39. She recounted how, when she came to the store to return a key
12
on December 17, Ms. Cochenour gave her a “‘if looks could kill’ dirty look” before
13
14
15
16
17
18
going into the back office. Id. at ¶ 40. And later, when she told Ms. Anyan that she
needed at least two week off, Ms. Cochenour slammed shut the drawer in a large metal
filing cabinet where employees kept their purses and gave her another dirty look. Id. at
¶ 41. She told Ms. Rackley that when she highlighted this behavior to Ms. Anyan, Ms.
Anyan told her that “the two of you are adults, and you can deal with it.” Id. at ¶ 42.
Accordingly to Ms. Washburn, she was “dismayed” by Ms. Rackley’s response to
19
this description of her treatment. Rather than agreeing to look into these “issues,” Ms.
20
Rackley told her that it would only make things “more difficult when [she] returned.”
21
Id. at ¶ 60. Nevertheless, she concedes that, at the time, she agreed to wait to “see what
22
happened when [she] went back and would call [Ms. Rackley] if things continued.” Id.
23
She says she also made clear, though, that she “wanted the harassment to stop.” Id.
24
25
year to spend more time with her family. Dkt. # 69-2 at 31.
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 5
1
The parties did not communicate again until February 23, 2010, when Ms.
2
Macdonald sent Ms. Washburn a letter informing her that her authorized leave had
3
expired on February 12 and directing her to contact her store manager immediately to
4
arrange her return date. Dkt. # 69-26 at 9. The letter stated that Gymboree would
5
assume she had decided not to return if it did not hear from her within three business
6
days. Id. Ms. Washburn immediately phoned Ms. Macdonald to ask her what she
7
needed to do to continue her leave. Dkt. # 68 at ¶ 63. She was unable to reach her but
8
9
10
11
left a message, stating that her doctors “were recommending that [she] not yet return to
work” and that she was “considering asking to be transferred from the Tacoma Mall
store because things were clearly not getting any better.” Id. The two exchanged
messages for a few weeks but never reached each other. Id.
On March 10, Ms. Washburn left Ms. Macdonald another message, stating that
12
her “doctors would not release her to work at the Tacoma Mall store but that they would
13
14
15
16
provide a written release to work at a different store.” Id. at ¶ 64 (emphasis omitted).
On March 29, Ms. Washburn and Ms. Macdonald finally spoke. Id. at ¶ 66. Ms.
Washburn told her that “her . . . health care providers would not let [her] return to the
Tacoma Mall store but that they would allow [her] to work at a different store,” id. at
17
¶ 67—a possibility she was interested in, even if it meant accepting a demotion to sales
18
associate. Dkt. # 69-24; Dkt. # 68 at ¶ 71. Ms. Macdonald told her to contact Jim
19
Shanahan at corporate about her complaints and about transferring. Dkt. # 68 at ¶¶
20
68–71. Ms. Washburn did, describing her circumstances to him. Id. at ¶ 68. According
21
to Ms. Washburn, he “did not care” about her complaints; he only wanted to talk about
22
her request to transfer. Id. at ¶ 69.
23
Two days after she spoke with Mr. Shanahan, Ms. Washburn received a phone
24
call from Ms. Rackley. See id. at ¶ 72. In it, she relayed that she had spoken with Mr.
25
Shanahan and understood that Ms. Washburn was “not planning on returning to the
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 6
1
Tacoma store”—a decision she “completely respect[ed] and underst[oo]d.” Id. at ¶ 73.
2
She asked Ms. Washburn to give her a call and let her know “what locations [she] would
3
be interested in at working at other than the Tacoma store and what positions [she was]
4
interested in” so that she could “go down there and find out what” was available. Id.
Ms. Washburn followed up with Ms. Rackley, telling her that she would prefer to
5
6
transfer to either “the South Hill Mall store where [she] started or the store at the
7
Supermall in Auburn.”6 Id. at ¶ 71; Dkt. # 69-22 at 23. A week later, Ms. Rackley
8
9
10
11
called again and left a voicemail informing her that nothing was available. Dkt. # 68 at ¶
74. She told her that Gymboree was going to go ahead and process her resignation but
that “if there is another location that you decide you would be comfortable working at”
or “if anything comes open over in [S]outh [H]ill certainly we would love to get you[]
back on board.” Id. Ms. Washburn did not return her call. On May 6, Ms. Washburn
12
received a letter from Ms. Macdonald stating that Gymboree had processed her
13
resignation effective March 29, 2010. Id. at ¶¶ 76–77.
14
15
16
Ms. Washburn responded by filing a complaint with Washington’s Human Rights
Commission. Id. at ¶ 78. After the Commission dismissed her complaint, she filed suit
against Defendants Gymboree and Ms. Anyan in King County Superior Court. Dkt. # 1
17
at 7. Defendants promptly removed the action to this Court. Id. at 1–4. Plaintiffs later
18
filed an amended complaint, asserting claims against Gymboree, Ms. Anyan, and Ms.
19
Rackley. Dkt. # 42. Specifically, Ms. Washburn alleges that each Defendant violated
20
her rights under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et. seq.,
21
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111, et. seq., and
22
6
25
The Court notes that Ms. Washburn also suggests that she informed Ms. Rackley that
she was willing to transfer “anywhere”—an assertion she did not make at her deposition. See
Dkt. # 69-22 at 4 (“And I did return the call and I told her that I would like to go to the South
Hill store and also the SuperMall.”). For present purposes, however, the Court must credit that
assertion. See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266–67 (9th Cir. 1991).
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 7
23
24
1
Washington’s state law counterparts, RCW 49.60, et. seq., and RCW 49.78, et. seq. She
2
further alleges that each are liable to her for willful failure to pay wages, and that Ms.
3
Rackley and Gymboree are liable for defamation and/or portraying her in a false light.
4
5
II. DISCUSSION
The Court can enter judgment as a matter of law only if it is satisfied that there is
6
no genuine issue of material fact. Fed. R. Civ. P. 56(c). The moving party as to each
7
issue bears the initial burden of informing the Court of the basis for summary judgment.
8
9
10
11
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It must prove each and every
element of its claims or defenses such that “no reasonable jury could find otherwise.”
Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 962 (Fed. Cir. 2001). In doing so, it is
entitled to rely on nothing more than the pleading themselves. Celotex, 477 U.S. at
322–24. Only once the moving party makes that initial showing does the burden shifts to
12
the nonmoving party to show by affidavits, depositions, answers to interrogatories,
13
14
15
16
admissions, or other evidence that summary judgment is not warranted because a
genuine issue of material fact exists. Id. at 324.
Notably, to be material, the fact must be one that bears on the outcome of the
case. A genuine issue exists only if the evidence is such that a reasonable trier of fact
17
could resolve the dispute in favor of the nonmoving party. Anderson v. Liberty Lobby,
18
Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable . . . or is not
19
significantly probative . . . summary judgment may be granted.” Id. at 249–50. In
20
reviewing the evidence “the court must draw all reasonable inferences in favor of the
21
nonmoving party, and it may not make credibility determinations or weigh the
22
evidence.” Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150 (2000).
23
With these standards in mind, the Court turns to each of Plaintiffs’ claims.
24
25
26
A. Family and Medical Leave Act
“The FMLA creates two interrelated substantive rights for [covered] employees.”
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 8
1
Xin Liu v. Amway Corp., 347 F.3d 1125, 1132 (9th Cir. 2003); see Bachelder v. Am. W.
2
Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001) (describing the requirements of a
3
“covered employee”). “First, an employee has the right to take up to twelve weeks of
4
leave” “for personal medical reasons, to care for their newborn babies, or to care for
5
family members with serious illnesses.” Liu, 347 F.3d at 1132 (citing 29 U.S.C. §
6
2612(a)). “Second, an employee who takes FMLA leave has the right to be restored to
7
his or her original position7 or to a position equivalent in benefits, pay, and conditions of
8
employment upon return from leave.” 29 U.S.C. § 2614(a).
To protect these rights, the FMLA makes it “unlawful for any employer to
9
10
11
interfere with, restrain, or deny the exercise of or the attempt to exercise” them. 29
U.S.C. § 2615(a)(1). The Department of Labor has interpreted this provision to preclude
“not only refusing to authorize FMLA leave, but discouraging an employee from using
12
such leave.” 29 C.F.R. § 825.220(b); accord Liu, 347 F.3d at 1133 (approving of that
13
14
15
16
interpretation). The FMLA also states that it is “unlawful for any employer to discharge
or in any other manner discriminate against any individual for opposing any practice
made unlawful by this subchapter.” § 2615(a)(2); Sanders v. City of Newport, 657 F.3d
772, 777 (9th Cir. 2011) (noting that “a violation of this section is known as a
17
‘discrimination’ or ‘retaliation’ claim”). Notably, though, and this is particularly
18
relevant in this case, the Ninth Circuit has explained that, “[b]y their plain meaning, the
19
anti-retaliation or anti-discrimination provisions [of § 2615(a)(2) and (b)] do not cover
20
visiting negative consequences on an employee simply because he has used FMLA
21
leave.” Bachelder, 259 F.3d at 1124. “Such action is, instead, covered under
22
23
7
25
“The FMLA does not entitle the employee to any rights, benefits, or positions they
would not have been entitled to had they not taken leave.” Xin Liu, 347 F.3d at 1132 (citing 29
U.S.C. § 2614(a)(3)(B)). “It simply guarantees that an employee’s taking leave will not result in
a loss of job security or in other adverse employment actions.” Id.
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 9
24
1
§ 2615(a)(1)” as an interference claim. Id.; accord Liu, 347 F.3d at 1133 n.7.
Having identified the law, the Court moves to the facts. Ms. Washburn alleges
2
3
that Defendants violated her FMLA rights in a variety of ways: that “Defendants failed
4
to provide plaintiff proper notice of her FMLA rights, failed to investigate or enter the
5
collaborative process to determine what amount of time plaintiff needed for FMLA
6
leave, failed to allow or provide her leave when requested, retaliated against her when
7
she requested her FMLA rights, and failed to return her job to her when she returned
8
9
10
11
from leave.” Dkt. # 42 at ¶ 3.4. In their motion, Defendants do not deny that Ms.
Washburn was a covered employee and do not meaningfully contest that they were
“employers” for purposes of the FMLA.8 See Dkt. # 52 at 23. They do, however, deny
that they violated the Act or its implementing regulations and also argue that summary
judgment is appropriate regardless because Ms. Washburn cannot demonstrate that she
12
suffered any harm as a result. The Court does not entirely agree.
13
14
15
16
First, the Court notes that, while not without a certain innate appeal, Defendants’
broad argument regarding Ms. Washburn’s lack of “harm” is not convincing. While the
Supreme Court has not definitively answered the question of whether damages are
necessary to establish a prima facie interference claim, see Ragsdale v. Wolverine World
17
Wide, Inc., 535 U.S. 81, 88 (2002), the Ninth Circuit has squarely held that they are not.
18
Liu, 347 F.3d at 1135; see Sanders, 657 F.3d at 778 (holding that an “employee must
19
establish that: (1) he was eligible for the FMLA’s protections, (2) his employer was
20
covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided
21
sufficient notice of his intent to take leave, and (5) his employer denied him FMLA
22
benefits to which he was entitled” to demonstrate a “prima facie case” of a failure to
23
8
25
The FMLA defines “employer” as “any person who acts, directly or indirectly, in the
interest of an employer to any of the employees of such employer.” 29 U.S.C. §
2611(4)(A)(ii)(I).
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 10
24
1
reinstate interference claim). The harm is the deprivation of the substantive statutory
2
right. Liu, 347 F.3d at 1135.
Liu is directly on point. In that case, the Ninth Circuit reversed the district court
3
4
for doing precisely what Defendants urge here—granting summary judgment to the
5
employer because, regardless of its mischaracterization of “FMLA qualifying leave . . .
6
as personal leave,” the plaintiff received all the leave she was entitled to and “there was
7
[thus] no practical distinction between the personal leave she was granted and the FMLA
8
9
10
11
leave to which she was entitled.” Liu, 347 F.3d at 1135. In its decision, the Ninth
Circuit made clear that an interference claim is actionable so long as there exists a triable
issue of fact as to whether the employer “denied [its employee] a substantive right under
FMLA.” Id. Whether damages could ultimately be proven and recovered was
immaterial—a conclusion that both binds the Court and precludes it from broadly
12
dismissing Ms. Washburn’s FMLA claim for want of damages.9
13
14
15
16
17
The Court thus moves to Defendants’ second argument—that there does not exist
a triable issue of fact as to each of Ms. Washburn’s alleged interference claims and that
judgment in their favor is appropriate as a matter of law. Again, the Court largely
disagrees. Plaintiffs correctly assert that the FMLA imposes specific notice requirements
on employers. E.g., 29 U.S.C. § 2619(a); 29 C.F.R. § 825.300. Ms. Washburn’s
18
19
9
25
To be clear, the Court does have concerns regarding whether Ms. Washburn will be
able to show that she sustained any recoverable damages. As the Supreme Court has explained,
“§ 2617 provides no relief unless the employee has been prejudiced by [a] violation.” Ragsdale,
535 U.S. at 88. And the FMLA, by its terms, allows an aggrieved employee to recover only
actual monetary losses: “for compensation and benefits lost ‘by reason of the violation,’
§ 2617(a)(1)(A)(i)(I), for other monetary losses sustained ‘as a direct result of the violation,’
§ 2617(a)(1)(A)(i)(II), and for ‘appropriate’ equitable relief, including employment,
reinstatement, and promotion, § 2617(a)(1)(B).” Ragsdale, 535 U.S. at 88. Claims for intangible
losses like emotional distress, Opp. (Dkt. # 64) at 16, are not recoverable. Farrell v. Tri-Cnty.
Metro. Transp. Dist. of Or., 530 F.3d 1023, 1025 (9th Cir. 2008). And even under the best of
circumstances, such “other losses” are capped at “a sum equal to 12 weeks . . . of wages or
salary.” § 2617(a)(1)(A)(i)(II).
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 11
20
21
22
23
24
1
allegations regarding Defendants’ failure to notify her of her rights prior to January
2
2010, e.g., Dkt. # 68 at ¶ 21, are sufficient to raise a triable issue of fact as to whether
3
these requirements were met.10
4
The same is true of Ms. Washburn’s complaints that Defendants “failed to
5
investigate or enter the collaborative process to determine what amount of time [she]
6
needed for FMLA leave” and “failed to allow or provide her leave when requested”—at
7
least to the extent Defendants allegedly failed “to initiate a procedure to determine
8
9
10
11
whether she qualified for FMLA leave” prior to January 2010. Compare, e.g., id., with
Liu, 347 F.3d at 1135. As Liu makes clear, once an employee provides “notice sufficient
to make the employer aware that the employee needs FMLA-qualifying leave,” 29
C.F.R. 825.302(c), it is the employer’s responsibility “to initiate a procedure” to
determine whether “FMLA leave is appropriate, to inquire as to specific facts to make
12
that determination, and to inform the employee of his or her entitlements.” 347 F.3d at
13
14
15
16
1134–35. And Ms. Washburn has stated that no inquiry was undertaken and no FMLA
leave was given prior to January 2010. E.g., Dkt. # 68 at ¶¶ 20–21; see Dkt. # 64 at 14
(“Defendants’ failure to acknowledge FMLA rights until January 2010 was
interference.”). Thus, even though the Court agrees that Ms. Washburn does not appear
17
to have incurred any “actual monetary losses” as a result of this alleged interference, see
18
Dkt. # 69-2 at 24 (“They did not deny me [any leave] I requested off.”), it may still
19
amount to a technical violation. See Liu, 347 F.3d at 1135.
20
The Court next considers her “retaliation” claim, which, as explained in
21
10
25
The Court notes that the Act and its implementing regulations appear to conflict as to
whether every notice requirement gives right to a private cause of action. For example, the Act
allows employees to bring a civil action for violations of § 2615 only. § 2617(a). And the
“posting” notice requirement is contained at § 2619(a). See also § 2619(b) (providing a civil
penalty for a violation of § 2619(a)). As a result, the regulation’s inclusion of this requirement
as a form of “interference with, restraint, or denial of the exercise of an employee’s FMLA
rights,” § 825.300(e), appears to contravene the Act itself.
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 12
22
23
24
1
Bachelder, is really a § 2615(a)(1) interference claim. 259 F.3d at 1124. At the outset,
2
the Court finds that nearly all of Ms. Washburn’s complaints regarding her co-workers
3
alleged conduct do not qualify as interference. See Brooks v. City of San Mateo, 229
4
F.3d 917, 928–29 (9th Cir. 2000) (citation omitted) (Title VII); see Ray v. Henderson,
5
217 F.3d 1234, 1241 (9th Cir. 2000) (Title VII). Simply put, being “shunned,” being
6
glared at, and having a file cabinet door “slammed” in one’s presence on a single
7
occasion is not “sufficiently severe or pervasive to alter the conditions of the victim’s
8
9
10
11
employment and create an abusive working environment.” Ray, 217 F.3d at 1245; see
Brown v. City of Tucson, 336 F.3d 1181, 1193 (9th Cir. 2003) (“We are quite convinced
that, even assuming their truth, some of Brown’s allegations do not constitute a violation
of § 503(b)—specifically her assertions that Holliday talked on the phone with Richards
about her; told her that she was ‘sloughing off’ and ‘goofing off’; and informed her that
12
other members of the unit were complaining about her early departures and long
13
14
15
16
lunches.”); Brooks, 229 F.3d at 928–29 (holding that the plaintiff’s claims that “she
returned to a very different workplace than the one she had left”—“that her coworkers
shunned her” and “the males in the office refused to speak to her about anything other
than work”—was not actionable). Defendants’ repeated requests that Ms. Washburn
17
step down from her position are a different matter, however. See Brown, 336 F.3d at
18
1193. Because such conduct has the effect of “discouraging an employee from using
19
[her] leave,” 29 C.F.R. § 825.220(b); Brown, 336 F.3d at 1193, the Court will allow that
20
aspect of her “retaliation” interference claim to proceed to trial.
21
Finally, the Court reaches Ms. Washburn’s last FMLA contention: that
22
Defendants “failed to return her job to her when she returned from leave.” Dkt. # 42 at ¶
23
3.4. As framed in her response, this contention actually encompasses two alleged
24
violations—that Defendants allegedly “fired” her after she exhausted her FMLA leave
25
time, Dkt. # 64 at 15, and that they “did not provide [her] Extended Personal Leave as
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 13
1
promised in McDonald’s [sic] January 6, 2010 leave flyer,” id. at 16. The Court finds
2
that Defendants are entitled to judgment as a matter of law as to each.
3
Notably, the Court agrees that each claim, in the abstract, is actionable. “The
4
right to reinstatement guaranteed by 29 U.S.C. § 2614(a)(1) is the linchpin of the
5
entitlement theory because ‘the FMLA does not provide leave for leave’s sake, but
6
instead provides leave with an expectation that an employee will return to work after the
7
leave ends.’” Sanders, 657 F.3d at 778 (citations and some internal quotation marks
8
9
10
11
omitted). The difficulty in this case is that Ms. Washburn has not presented any
evidence that Defendants failed to reinstate her. See id. (“[E]vidence that an employer
failed to reinstate an employee who was out on FMLA leave to her original (or an
equivalent) position establishes a prima facie denial of the employee’s FMLA rights.”).
To the contrary, each time Ms. Washburn returned to work prior to January 2010, she
12
was reinstated to her position. And, it is beyond dispute that after Ms. Washburn
13
14
15
16
17
18
exhausted her FMLA leave in March 2010, Defendants again offered to reinstate her to
her prior position. Dkt. # 68 at ¶ 64; see Dkt. # 69-26 at 9 (informing Ms. Washburn that
her leave had expired and that she should contact her “Store Manager immediately in
order to arrange [her] return date.” (emphasis in original)); Dkt. # 69-2 at 21–22; Dkt. #
69-24 (noting that Ms. Washburn had declined to return to the Tacoma store).
It is equally undisputed that, rather than agreeing to return, Ms. Washburn told
19
Defendant Gymboree that she would not return to her old position—that she would only
20
return to a different position. E.g., Dkt. # 69-2 at 22 (“I did tell [Ms. Macdonald] that I
21
would not return to the Tacoma store, that I wanted to go to a different location.”). And
22
though she may have had very good personal and medical reasons for that decision, e.g.,
23
Dkt. # 68 at ¶ 64 (“I very clearly told Gymboree (through McDonald [sic]) that my
24
doctors would not release me to work at the Tacoma Mall store . . . .”), those reasons did
25
not impose an FMLA obligation on Defendants. Sanders, 657 F.3d at 778. “The FMLA
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 14
1
is clear on this point: ‘Nothing in this section shall be construed to entitle any restored
2
employee to . . . any right, benefit, or position of employment other than any right,
3
benefit or position to which the employee would have been entitled had the employee not
4
taken the leave.” 29 U.S.C. § 2614(a)(3)(B). And the regulations are even clearer: “If
5
the employee is unable to perform an essential function of the position because of a
6
physical or mental condition, including the continuation of a serious health condition or
7
an injury or illness . . . , the employee has no right to restoration to another position
8
9
10
11
under the FMLA.” 29 C.F.R. § 825.216(c) (emphasis added). Accordingly, the Court
GRANTS Defendants summary judgment as to this aspect of Ms. Washburn’s FMLA
interference claim. See id.
The second aspect of Ms. Washburn’s failure to reinstate claim does not fare any
better. Again, the Court finds no fault with the legal premise. The Department of
12
Labor’s regulations do require an employer to “observe any employment benefit
13
14
15
16
program or plan that provides greater family or medical leave rights to employees than
the rights established by the FMLA.” 29 C.F.R. § 825.700. The difficulty is that the
facts do not support Ms. Washburn’s conclusory, self-serving contention that Defendants
promised such leave “in the paperwork sent by [Ms. Macdonald].” Compare Dkt. # 68 at
17
¶ 76, with FTC v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (“A
18
conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is
19
insufficient to create a genuine issue of material fact.”). As is plain from even a cursory
20
review of that paperwork, no promise of extended leave was made; the paperwork
21
merely informed Ms. Washburn of the availability of additional leave if requested,
22
documented, and approved. Dkt. # 69-26 at 5. As the document states: “[I]f you are on
23
an approved disability leave due to your own serious health condition, you may request
24
additional time off . . . up to 7 months of leave in total, including the leave time granted
25
under FMLA or any state law.” Id. (first emphasis in original). But as it makes clear,
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 15
1
“[i]n order to request any additional time, you must submit documentation from your
2
healthcare provider stating your dates of disability.” Id.
3
Moreover, in addition to not serving as any sort of promise or guarantee, the
4
paperwork demonstrates that Ms. Washburn failed to take the appropriate steps to apply
5
for such leave. Even were the Court to credit her “clear statements that [she] wanted to
6
continue to work,” Dkt. # 68 at ¶ 76, as a request for extended leave, the very document
7
on which she relies makes clear that, “to make a request,” an employee must provide
8
9
10
11
sufficient medical documentation to justify the time requested. Dkt. # 69-26 at 5. And,
as Ms. Washburn has repeatedly admitted, she did not provide Defendants with any
medical documentation to justify even FMLA leave beyond February 12, 2010, much
less any purported request for extended leave. E.g., Dkt. # 69-2 at 24 (“Q: But you
didn’t provide any further notes covering the period after February 12th? A: No, I did
12
not.”). Accordingly, Defendants could not have violated § 825.700 by failing to allow
13
14
15
16
her extended leave, and the Court GRANTS Defendants’ summary judgment as to this
aspect of her FMLA interference claim as well.
In sum then, the Court GRANTS Defendants’ motion as to Ms. Washburn’s
claims that they violated the FMLA by failing “to return her job to her when she returned
17
from leave.” It also GRANTS Defendants’ motion as to the alleged “retaliation”
18
interference, except to the extent she alleges she was threatened with demotion. Her
19
remaining FMLA claims contain issues of fact that must be resolved at trial.
20
B. Washington’s Family Leave Act (“WFLA”)
21
Ms. Washburn’s claims under the WFLA do not require much discussion. See
22
Dkt. # 42 at ¶ 3.3. By and large, they are identical to her FMLA claims. Compare id.,
23
with id. at ¶ 3.4. There is good reason for the similarity. As other courts have
24
recognized, e.g., Kopp v. Reardan/Edwall Sch. Dist. No. 009, No. CV–07–216–LRS,
25
2009 WL 774122, at *8 n.4 (E.D. Wash. Mar. 19, 2009), the WFLA mirrors the
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 16
1
provisions of the FMLA. And as RCW 49.78.410 provides, “This chapter must be
2
construed to the extent possible in a manner that is consistent with similar provisions, if
3
any, of the federal family and medical leave act of 1993 (Act Feb. 5, 1993, P.L. 103-3,
4
107 Stat. 6), and that gives consideration to the rules, precedents, and practices of the
5
federal department of labor relevant to the federal act.”
6
As a result, the Court’s discussion of Ms. Washburn’s FMLA claims applies
7
equally to the merit of her WFLA claims. The Court thus GRANTS Defendants’ motion
8
9
10
11
as to her claims that Defendants violated the WFLA by failing “to return her job to her
when she returned from leave.” It also GRANTS Defendants’ motion as to her alleged
“retaliation” interference claim, except to the extent Ms. Washburn alleges she was
threatened with demotion. Otherwise, for the reasons stated, Ms. Washburn’s remaining
WFLA claims will proceed to trial.
12
C. Americans with Disabilities Act
13
14
15
16
“The ADA prohibits discrimination ‘against a qualified individual on the basis of
disability in regard to . . . job training[] and other terms, conditions, and privileges of
employment.’” U.S. E.E.O.C. v. UPS Supply Chain Solutions, 620 F.3d 1103, 1110 (9th
Cir. 2010) (quoting 42 U.S.C. § 12112(a)). An employer discriminates against a
17
qualified individual with a disability11 by “not making reasonable accommodations to the
18
known physical or mental limitations of an otherwise qualified individual with a
19
disability who is an applicant or employee, unless [the employer] can demonstrate that
20
the accommodation would impose an undue hardship on the operation of the business of
21
[the employer].” § 12112(b)(5). And the ADA also precludes an employer from
22
23
11
25
“The term ‘qualified individual with a disability’ means an individual with a disability
who, with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). In their
motion, Defendants do not dispute that Ms. Washburn is such an individual.
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 17
24
1
retaliating against any individual who “has opposed any act or practice made unlawful
2
by this chapter . . . or participated in any manner in an investigation,” 42 U.S.C. §
3
12203(b), and makes it unlawful for an employer to “coerce, intimidate, threaten, or
4
interfere with any individual in the exercise or enjoyment of, or on account of his or her
5
having exercised or enjoyed,” his or her ADA rights, § 12203(b).
6
7
8
9
10
11
In this case, Ms. Washburn has asserted that Defendant Gymboree12 violated these
protections “by failing to provide plaintiff proper notice of her ADA rights, failing to
investigate or enter the collaborative process to determine whether her physical disability
could be accommodated, failing to provide her reasonable accommodation, harassing her
and subjecting her to a hostile work environment because of her Disability, retaliating
against her when she requested her ADA rights, and ultimately terminating her because
of her disability and attempt to exercise her ADA rights.” Dkt. # 42 at ¶ 3.4. In its
12
motion, Gymboree contends that “Plaintiff cannot establish any of these claims” and
13
14
15
16
challenges Ms. Washburn’s assertions that it failed to reasonably accommodate her
disability, harassed her, and ultimately retaliated against her. Dkt. # 52 at 10–18. In
response, Ms. Washburn defends only three aspects of their claim: that Defendant failed
to reasonably accommodate her disability, that they harassed her and subjected her to a
17
hostile work environment on account of her disability, and that they retaliated against her
18
by ultimately firing her. Dkt. # 64 at 17–23. The Court therefore limits its inquiry to
19
these disputed claims. Jenkins v. Cnty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir.
20
2005) (“Jenkins abandoned her other two claims by not raising them in opposition to the
21
County’s motion for summary judgment.”); USA Petroleum Co. v. Atl. Richfield Co., 13
22
12
25
Ms. Washburn concedes that Defendants Anyan and Rackley are not liable under the
ADA. Dkt. # 64 at 23 (citing Walsh v. Nev. Dept. of Human Res., 471 F.3d 1033, 1038 (9th Cir.
2006) (“The district court was correct when it held that individual defendants cannot be held
personally liable for violations of the ADA.”)). Accordingly, the Court dismisses her ADA
claims against each.
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 18
23
24
1
F.3d 1276, 1284 (9th Cir. 1994) (“It is a general rule that a party cannot revisit theories
2
that it raises but abandons at summary judgment.”).
3
1. Reasonable Accommodation
4
The Court turns first to Ms. Washburn’s accommodation-related claim, which
5
encompasses her allegations that Gymboree both failed to properly engage in an
6
interactive process and failed to allow her at least three reasonable accommodations:
7
leave without harassment, additional leave after she exhausted her FMLA leave in 2010,
8
9
10
11
and transfer. At the outset, the Court declines Ms. Washburn’s invitation to evaluate
Defendant’s process in the abstract. As the Ninth Circuit has explained, the process is
the means to an end—the provision of a reasonable accommodation. Zivkovic v. S. Cal.
Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (“[O]nce an employee requests an
accommodation or an employer recognizes the employee needs an accommodation but
12
the employee cannot request it because of a disability, the employer must engage in an
13
14
15
16
17
18
interactive process with the employee to determine the appropriate reasonable
accommodation.” (emphasis added)). It is not an end in and of itself. See id.; Humphrey
v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1138 (9th Cir. 2001) (“Given MHA’s failure to
engage in the interactive process, liability is appropriate if a reasonable accommodation
without undue hardship to the employer would otherwise have been possible.”).
Moreover, it is not a one-sided obligation. Both employee and employer must
19
participate in an ongoing dialogue that “‘fosters the framework of cooperative
20
problem-solving contemplated by the ADA’ because it ‘encourag[es] employers to seek
21
to find accommodations that really work,’ and because it ‘avoid[s] the creation of a
22
perverse incentive for employees to request the most drastic and burdensome
23
accommodation possible out of fear that a lesser accommodation might be ineffective.’”
24
UPS Supply, 620 F.3d at 1111 (quoting Humphrey, 239 F.3d at 1138); see Zivkovic, 302
25
F.3d at 1089 (“The interactive process requires: (1) direct communication between the
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 19
1
employer and employee to explore in good faith the possible accommodations; (2)
2
consideration of the employee’s request; and (3) offering an accommodation that is
3
reasonable and effective.”). Accordingly, the Court will evaluate Defendant’s efforts
4
both in relation to each of the accommodations Ms. Washburn now proposes and in
5
relation to her own actions.
6
The Court starts with her first proposed accommodation: leave without
7
harassment. And the Court finds that, at least to the extent that Ms. Washburn asserts
8
9
10
11
that she was threatened with demotion and/or repeatedly urged to step down from her
position, Plaintiffs have an actionable claim. Brown, 336 F.3d at 1193; see also Brooks,
229 F.3d at 928–29. As the Ninth Circuit concluded in Brown, “We are quite convinced
that, even assuming their truth, some of Brown’s allegations do not constitute a violation
of § 503(b)—specifically her assertions that Holliday talked on the phone with Richards
12
about her; told her that she was “sloughing off” and “goofing off”; and informed her that
13
14
15
16
other members of the unit were complaining about her early departures and long lunches.
We are equally confident that other allegations—most notably Holliday’s demands that
Brown stop taking her medications and perform night-time call-out or face demotion or
forced retirement—do constitute actionable threats because Brown has alleged that she
17
has suffered short-term memory problems and felt extremely stressed, harassed, and
18
pressured by Holliday.” 336 F.3d at 1193 (emphasis added). This delineation controls.
19
Ms. Washburn’s second proposed accommodation does not fare as well. Most
20
notably, she has not made any showing that “more time off” would have served as a
21
reasonable accommodation or that Defendant “‘bears responsibility for the breakdown
22
in’ the interactive process” that resulted in her failure to receive that newly proposed
23
accommodation. See Zivkovic, 302 F.3d at 1089 (citation and internal quotation marks
24
omitted). To the contrary, when Ms. Macdonald contacted Ms. Washburn in March
25
about returning to work, Ms. Washburn told her that the problem was not one of time; it
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 20
1
was one of location. E.g., Dkt. # 68 at ¶ 64. As she states: “I very clearly told
2
Gymboree (through McDonald [sic]) that my doctors would not release me to work at
3
the Tacoma Mall store but that they would provide a written release to work at a
4
different store.” Id. (emphasis in original). And as her own doctor explains, “Had I been
5
asked by Gymboree to participate and assist in a collaborative process . . . [m]y
6
recommendation would have been that simply allowing Kerry time off f[rom] work
7
because of her MS was not enough.” Dkt. # 66 at ¶ 5.
8
9
10
11
Moreover, as previously discussed, it is undisputed that Defendant had already
made Ms. Washburn aware of the availability of extended leave. E.g., Dkt. # 69-26 at 5.
She only had to provide Defendant with the appropriate medical documentation to
support her need for additional time off, id., a requirement specifically endorsed by the
Equal Employment Opportunity Commission (“EEOC”). Dkt. # 69-49 at 6–7 (EEOC
12
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the
13
14
15
16
Americans with Disabilities Act) (“When the disability and/or the need for
accommodation is not obvious, the employer may ask the individual for reasonable
documentation about his/her disability and functional limitations.”); id. at 8 (noting that
an employer may ask an employee to provide documentation to support the need for a
17
specific accommodation even if she may not be asked for additional proof regarding an
18
already-established disability). And as the EEOC makes clear, “[i]f an individual’s . . .
19
need for reasonable accommodation is not obvious, and s/he refuses to provide the
20
reasonable documentation requested by the employer, then s/he is not entitled to
21
reasonable accommodation.” Id. at 7–8. Accordingly, the Court finds as a matter of law
22
that Gymboree cannot be blamed for not according Ms. Washburn an accommodation
23
she expressly and repeatedly denied needing and, alternatively, for which she never
24
provided the necessary documentation after being informed of its availability.
25
26
Finally, the Court finds that Ms. Washburn’s third proposed accommodation,
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 21
1
transfer, is also largely deficient. Notably, transfer is not, in and of itself, an
2
unreasonable accommodation. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 398–99
3
(2002). Section 12111(9)(B) specifically lists “reassignment to a vacant position” as an
4
example of a reasonable accommodation. Accord Barnett, 535 U.S. at 398–99. The
5
question in this case is whether any “vacant” positions existed. In support of their
6
argument that they did, Ms. Washburn first contends that there was a nearly limitless
7
supply of “vacant positions” because Gymboree employees work “at will” and
8
9
10
11
Gymboree thus could have forced any employee to swap stores with her. Dkt. # 64 at
20–22. The Court disagrees with this position. As the Supreme Court explained in
Barnett, “Nothing in the Act . . . suggests that Congress intended the word ‘vacant’ to
have a specialized meaning.” 535 U.S. at 398–99. And, “in ordinary English,” “vacant”
means “not occupied by an incumbent.” Merriam-Webster Dictionary,
12
http://www.merriam-webster.com/dictionary/vacant; The Free Dictionary,
13
14
15
16
http://www.thefreedictionary.com/vacant (“containing nothing; empty” or “being
without an incumbent or occupant; unfilled”). Accordingly, a position that is in fact
occupied by another person is, by definition, not “vacant.” And the Court finds no basis
for concluding that the ADA contemplates requiring an employer to bump an employee
17
from a position he or she already holds to give that position to a disabled employee. See
18
Barnett, 535 U.S. at 399 (“The position in this case was held, at the time of suit, by
19
Barnett, not by some other worker; and that position, under the U.S. Airways seniority
20
system, became an ‘open’ one.” (emphasis added)).
21
Nevertheless, the Court cannot yet dismiss the claim because there remains a
22
factual question as to whether there were any vacant positions at or around the time that
23
Ms. Washburn informed Gymboree that she needed to transfer in order to be medically
24
cleared to return to work. For example, Ms. Washburn represents that she informed
25
Gymboree of her need on or about March 10, 2010, Dkt. # 68 at ¶ 64, and continued to
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 22
1
communicate with Gymboree through April 14, 2010, about that possibility, id. at ¶ 72.
2
And Ms. Washburn has provided evidence that, during this time frame, Defendant filled
3
several positions in several stores in the area. See Dkt. # 70. As a result, assuming she
4
can convince the trier of fact that she did indicate a desire to transfer to any store, and
5
not just store # 325, which did not have an opening, id., and assuming that she can
6
further prove that transfer would have been a reasonable accommodation under the
7
circumstances, Ms. Washburn may have a claim.
8
9
10
11
In sum then, the Court GRANTS Defendant Gymboree’s motion as to Ms.
Washburn’s ADA reasonable accommodation claims IN PART. It finds that Defendant
is entitled to judgment as a matter of law as to Ms. Washburn’s claims that her shunning
by her co-workers gave rise to an actionable ADA claim, that Gymboree failed to
reasonably accommodate her disability by allowing her additional time off in 2010, and
12
that Gymboree should have displaced other employees to allow her to transfer. The
13
14
15
16
17
18
Court will need to resolve her remaining accommodation claims at trial.
2. Harassment
The Court turns next to Ms. Washburn’s harassment claim—that, as stated
previously, her treatment by her co-workers and her managers, Ms. Anyan and Ms.
Rackley, constituted a hostile work environment.
The Court notes at the outset that the Ninth Circuit has yet to recognize a hostile
19
work environment ADA claim. Brown, 336 F.3d at 1189–90. Instead, as discussed
20
supra, under nearly identical circumstances, the Ninth Circuit concluded that a plaintiff’s
21
claim that “other members of the unit were complaining about her early departures and
22
long lunches” was not actionable under § 12203(b), whereas her claim that her manager
23
demanded she either forego her accommodations “or face demotion” were. Id. at 1192;
24
see also Brooks, 229 F.3d at 928–29. Accordingly, the Court again follows Brown’s
25
example. It GRANTS Defendant’s motion as to Ms. Washburn’s claims that her
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 23
1
shunning by her co-workers gave rise to an actionable ADA claim but allows her
2
§ 12203(b) demotion-related interference claim to proceed to trial.
3
3. Retaliation
4
Finally, the Court reaches Ms. Washburn’s last ADA claim, which, as framed in
5
her motion, is premised on her assertion that she was terminated because of her attempts
6
to exercise her ADA rights and/or was constructively terminated by the harassment she
7
allegedly endured. Dkt. # 64 at 18.
8
9
10
11
Again, the Court finds the basis of Plaintiffs’ claim to be duplicative of her other
ADA claims. Accordingly, it relies on its prior discussions of those contentions. To the
extent Ms. Washburn relies on her extended leave contention, the Court finds it deficient
as a matter of law. To the extent she relies on the possibility of transfer or managerial
interference, the Court will allow the claim to proceed to trial as a § 12203(b) interference
12
claim. See Brown, 336 F.3d at 1189–90; Bachelder, 259 F.3d at 1124 (distinguishing
13
14
15
16
17
actual retaliation claims from interference claims).
D. Washington’s Law Against Discrimination (“WLAD”)
Defendants next challenge the legal merit of Ms. Washburn’s WLAD claims,
which essentially mirror her ADA claims.
In their motion, Defendants contend that Washington’s treatment of WLAD claims
18
tracks the Ninth Circuit’s treatment of ADA claims and thus rely on the same arguments
19
Defendant Gymboree raised in contesting Ms. Washburn’s ADA contentions. See Dkt. #
20
52 at 10. Ms. Washburn does not challenge this assertion, other than to argue that the
21
WLAD, unlike the ADA, extends personal liability to individual supervisors as well. The
22
Court agrees with this point. See Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349,
23
361–62 (2001) (“The plain meaning of RCW 49.60.040(3), by its very terms,
24
encompasses individual supervisors and managers who discriminate in employment.”).
25
26
Accordingly then, for the reasons explained in the Court’s discussion of Ms.
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 24
1
Washburn’s ADA claims, the Court GRANTS Defendants’ motion as to her WLAD
2
claims IN PART. It finds that Defendants are entitled to judgment as a matter of law on
3
Ms. Washburn’s claims that her shunning by her co-workers gave rise to an actionable
4
WLAD claim, that Gymboree failed to reasonably accommodate her disability by
5
allowing her additional time off in 2010, and that Gymboree should have displaced other
6
employees to allow her to transfer. The Court finds that genuine issues of material fact
7
exist as to the remaining accommodation, harassment, and retaliation claims and therefore
8
9
10
11
DENIES the motion as to each.
E. Willful Failure to Pay Wages
Ms. Washburn’s fifth claim is for Defendants’ alleged “willful failure to pay . . .
her wages in violation of RCW 49.48.030 and RCW 49.52.070.” See Dkt. # 42 at ¶ 3.5.
In their motion, Defendants’ challenge this claim, categorizing it as a claim for
12
back wages that “should be dismissed as well.” Dkt. # 52 at 21. In response, Ms.
13
14
15
16
17
18
Washburn says nothing. Her response is devoid of any mention of either RCW 49.48.030
or RCW 49.52.070, much less any defense of the claim. See Dkt. # 64. And though the
Court could treat counsel’s failure as an admission that the claim lacks merit, Jenkins, 398
F.3d at 1095 n.4; USA Petroleum, 13 F.3d at 1284, it has instead conducted its own
inquiry into the possible merit of Ms. Washburn’s claim.
As is relevant, RCW 49.48.030 provides: “In any action in which any person is
19
successful in recovering judgment for wages or salary owed to him or her, reasonable
20
attorney’s fees, in an amount to be determined by the court, shall be assessed against said
21
employer or former employer . . . .” Washington courts have interpreted the statute
22
broadly, finding that it “provides reasonable attorney’s fees in any action in which a
23
person is successful in recovering judgment for wages or salary owed,” including
24
“situations in which an award is made not of wages actually worked for, but rather, for
25
moneys due ‘by reason of employment.’” Hayes v. Trulock, 51 Wn. App. 795, 836
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 25
1
(1988) (emphasis in original); see Gaglidari v. Denny’s Rests., Inc., 117 Wn.2d 426,
2
448–49 (1991). Thus, because there remains a triable issue of fact as to whether Ms.
3
Washburn is owed wages as a result of Defendants’ conduct, the Court must DENY
4
Defendants’ motion as to RCW 49.48.030.
5
Turning next to RCW 49.52.070, the Court notes that the statute allows an
6
aggrieved employee to collect twice the amount of the wages unlawfully and wilfully
7
withheld by an employer “by way of exemplary damages, together with costs of suit and a
8
9
10
11
reasonable sum for attorney’s fees.” See also RCW 49.52.070(2). And Washington
courts have found the scope of covered “wages” to be coextensive to those covered by
RCW 49.48.030, with at least one relevant distinction: RCW 49.48.070 does not apply
“if the employer has a bona fide dispute as to the obligation to pay.” Allstot v. Edwards,
114 Wn. App. 625, 633 (2002) (defining a “bona fide dispute” as one in which it “is fairly
12
debatable . . . whether all or a portion of the wages must be paid”); accord Schilling v.
13
14
15
16
Radio Holdings, Inc., 136 Wn.2d 152, 166 (1998). In any case, because there exists a
question of fact as to whether Defendants owe Ms. Washburn any unpaid wages, and
because “the issue of whether an employer acts ‘willfully’ for purposes of RCW
49.52.070 is a question of fact,” Schilling, 136 Wn.2d at 160, that is also plainly in
17
dispute, the Court DENIES Defendants’ motion as to RCW 49.52.070 as well.
18
F. Defamation and False Light
19
20
21
22
23
24
The Court next considers Ms. Washburn’s claim that Ms. Rackley defamed her
and portrayed her in a false light when she told Defendant Gymboree:
. . . I called Kerry 2 times and left a message both times offering her the
opportunity to transfer to either 325 [the Gymboree Puyallup store] or 5103
[the Gymboree store in the Auburn Supermall] as a sales associate, but
explained that we did not have open SL [Sales Lead] or AM [Assistant
Manager] position at these locations. I did not receive a response to the
message I left.
25
Dkt. # 52 at 21 (quoting Dkt. # 31 at 6–7 (e-mail from Ms. Rackley to Mr. Shanahan)).
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 26
1
The Court also considers Ms. Washburn’s claim that Defendant Gymboree is vicariously
2
liable for Ms. Rackley’s alleged torts, and that Gymboree committed an independent tort
3
when it repeated Ms. Rackley’s account to Washington’s Human Rights Commission in its
4
responses to Ms. Washburn’s complaint. Dkt. # 64 at 24–25; see Dkt. # 42 at ¶ 3.6.13
5
The Court first considers whether the statement is defamatory. “Defamation is
6
concerned with compensating the injured party for damage to reputation.” Corey v. Pierce
7
Cnty., 154 Wn. App. 752, 762 (2010) (citing Eastwood v. Cascade Broad. Co., 106 Wn.2d
8
9
10
11
466, 471 (1986)). It “requires that a plaintiff prove falsity, an unprivileged
communication, fault, and damages.” Id. (citing Mohr v. Grant, 153 Wn.2d 812, 822
(2005)). Notably, though, “[b]efore the truth or falsity of an allegedly defamatory
statement can be assessed, a plaintiff must prove that the words constituted a statement of
fact, not an opinion.” Robel v. Roundup Corp., 148 Wn.2d 35, 55 (2002). And, for
12
obvious reasons, the statement must also be defamatory. Right–Price Recreation LLC v.
13
14
15
16
Connells Prairie Cmty. Council, 146 Wn.2d 370, 382 (2002); Ernst Home Ctr., Inc. v.
United Food & Commercial Workers Int’l Union, Local 1001, 77 Wn. App. 33, 40 (1995).
As stated in Ernst, “our Supreme Court has indicated that not every misstatement of fact is
actionable.” 77 Wn. App. at 40 (quoting Mark v. Seattle Times, 96 Wn.2d 473, 493
17
(1981)). “Rather, it must be apparent that the false statement or communication presents a
18
substantial danger to the plaintiff’s personal or business reputation.” Id. (same). It must
19
tend to so “harm the reputation of another as to lower him in the estimation of the
20
community or to deter third persons from associating or dealing with him.” Right–Price,
21
146 Wn.2d at 382 (quoting Restatement (Second) of Torts § 559 (1977)). “Accordingly,
22
13
25
In their response, Ms. Washburn does not defend her allegation that Ms. Rackley
defamed her by stating that she “had made no specific complaint of harassment.” Dkt. # 64 at
24–25. Accordingly, she has waived the contention. Compare Jenkins, 398 F.3d at 1095 n.4,
and USA Petroleum, 13 F.3d at 1284, with id., and Dkt. # 42 at ¶ 3.6. The Court further finds
that it fails on its merits for the reasons discussed in this section.
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 27
23
24
1
the [C]ourt must initially decide, as a matter of law, whether [a] statement or
2
communication is capable of a defamatory meaning.” Ernst, 77 Wn. App. at 40.
3
In this case, Defendants challenge Ms. Washburn’s claim on a variety of grounds.
4
Dkt. # 52 at 21–23. Ultimately, however, the Court goes no further than the initial step of
5
evaluating the nature of the statement itself, finding that the complained-of statement is
6
non-defamatory as a matter of law. See Ernst, 77 Wn. App. at 40. Admittedly, as
7
Defendants concede, the statement was false. That said, it was also, in and of itself, not
8
9
10
11
harmful to Ms. Washburn’s reputation. It did not “expose [her] to hatred, ridicule or
contempt.” Restatement (Second) of Torts § 559, cmt. b. It did not disparage her “by
reflecting unfavorably upon h[er] personal morality or integrity or . . . consist of
imputations which, while not affecting [her] personal reputation, tend[ed] to discredit h[er]
financial standing in the community.” Id. And it certainly is not the kind of statement that
12
would “deter third persons from associating [or dealing] with [her]. Id. at § 559, cmt. c.
13
14
15
16
Simply put, the statement was false, and it was unfortunate, but it was not defamatory.
Ms. Washburn’s false light claim stands on slightly different footing. As
Washington courts have explained, “[f]alse light differs from defamation in that it focuses
on compensation for mental suffering, rather than reputation.” Corey, 154 Wn. App. at
17
762; see Eastwood, 106 Wn.2d at 471 (“While all false light cases need not be defamation
18
cases, all defamation cases are potentially false light cases.”). Thus, “[i]t is not . . .
19
necessary to the action . . . that the plaintiff be defamed.” Restatement (Second) of Torts
20
§ 652E, cmt. b; see Eastwood, 106 Wn.2d at 470–71 n.8 (applying the Restatement
21
formulation). “It is enough that [s]he is given unreasonable and highly objectionable
22
publicity that attributes to h[er] characteristics, conduct or beliefs that are false, and so is
23
placed before the public in a false position.” Restatement (Second) of Torts § 652E, cmt.
24
b. Accordingly, “[a] false light claim arises when ‘someone publicizes a matter that places
25
another in a false light if (a) the false light would be highly offensive to a reasonable
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 28
1
person and (b) the actor knew of or recklessly disregarded the falsity of the publication
2
and the false light in which the other would be placed.” Corey, 154 Wn. App. at 762.
3
That said, the distinction between defamation and false light also cuts against Ms.
4
Washburn. As explained in the Restatement, “‘[p]ublicity,’ as it is used in [the context of
5
privacy torts like false light], differs from ‘publication,’ as that term is used in § 577 in
6
connection with liability for defamation.” Restatement (Second) of Torts § 652D, cmt. a;
7
see Restatement (Second) of Torts § 652E, cmt. a (“On what constitutes publicity and the
8
9
10
11
publicity of application to a simple disclosure, see § 652D, Comment a, which is
applicable to the rule stated here.”); accord Vande Hey v. Walla Walla Cmty. Hospice,
142 Wn. App. 1033, at *3 (2008) (noting Washington’s adherence to § 652D formulation).
“‘Publication,’ in that sense, is a word of art, which includes any communication by the
defendant to a third person.” Restatement (Second) of Torts § 652D, cmt. a. “‘Publicity,’
12
on the other hand, means that the matter is made public, by communicating it to the public
13
14
15
16
at large, or to so many persons that the matter must be regarded as substantially certain to
become one of public knowledge.” Id. (emphasis added). “‘[C]ommunication to a single
person or a small group does not qualify.’” Fisher v. Dep’t of Health, 125 Wn. App. 869,
879 (2005) (quoting § 652D); Herndon v. City of Everett, 113 Wn. App. 1031, at *4
17
(2002) (concluding that publication of a falsehood to seven individuals is insufficient,
18
because the tort requires “publication must be ‘to a substantial number of people’”).
19
And in this case, while there may have been “publication,” there is no colorable
20
evidence of “publicity.” Cf. Anderson, 477 U.S. at 249–50. Ms. Washburn asserts that
21
Ms. Rackley relayed her inaccurate account of her actions to Mr. Shanahan and that
22
Gymboree then relayed this same account to the Human Right’s Commission’s
23
inquiry—nothing more. See Dkt. # 64 at 24 (“Kerry alleged both Rackley’s statement to
24
Shanahan and Gymboree’s statement to the HRC are ‘publications.’”). Neither is a
25
“communicati[on] . . . to the public at large, or to so many persons that the matter must be
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 29
1
regarded as substantially certain to become one of public knowledge.” See Restatement
2
(Second) of Torts § 652D, cmt. a. Rather, as in Vande, Ms. Rackley’s statement to Mr.
3
Shanahan was a non-public communication between employees. 142 Wn. App. 1033, at
4
*3 (“Here, Ms. Vande Hey fails to show the statements were ‘publicized’ within the
5
meaning of an invasion of privacy claim. . . . Ms. York communicated solely with her
6
employees through an internal memo.”). And a claim on account of Gymboree’s repeating
7
of Ms. Rackley’s statement to a single Commission investigator, Dkt. # 68 at ¶ 78
8
9
10
11
(“Despite that, the investigator with the Human Rights Commission phoned me and told
me he was going to dismiss my complaint because Gymboree told him I was offered two
positions that I asked for and ignored the offers.”), is precluded by the black-letter rule
itself. Restatement (Second) of Torts § 652D, cmt. a; Fisher, 125 Wn. App. at 879.14 The
audience was small and not public.
12
Accordingly, for the reasons stated, the Court GRANTS Defendants’ motion as to
13
14
15
Ms. Washburn’s defamation and false light claims.
G. Loss of Consortium
Finally, the Court finds that Plaintiff Michael Washburn has provided sufficient
16
17
14
25
Though not argued by Ms. Washburn, the Court has further considered whether the
fact that the Commission’s file ultimately “becomes a public record” is sufficient “publicity.”
See Washington State Human Rights Commission, General, FREQUENTLY ASKED QUESTIONS,
http://www.hum.wa.gov/FAQ/FAQGeneral.html (last visited August 27, 2012). The Court finds
that it is not. First, such republication would be imputed to the Commission and not Defendants.
See LaMon v. City of Westport, 44 Wn. App. 664, 668 (1986). Second, because the file is
obtainable only by specific request, Ms. Washburn would need to demonstrate actual access to
show even defamation-level publication—a showing they have not made. See id. (concluding
that the placement of a litigation file in the public library did not amount to “publication” for
purposes of defamation claim because “a person wishing to read the file, not on public display,
had to request it from the library staff” and the plaintiffs failed to show that anyone requested it).
And because she has not made that showing, she cannot demonstrate false light publicity. Id.
(“This conclusion that no publication occurred, dispositive of the LaMon’s defamation claim, is
also dispositive of their invasion of privacy claim based upon publicity that places them in a
false light. . . . Absent any publication, there can be no publicity.”).
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 30
18
19
20
21
22
23
24
1
evidence to raise a genuine issue of fact as to his loss of consortium claim. See Dkt. # 67.
2
Accordingly, regardless of Ms. Washburn’s conflicting evidence, Dkt. # 69-2 at 35; Dkt. #
3
68 at ¶¶ 82–83, the Court DENIES Defendants’ motion as to this claim.
4
III. CONCLUSION
5
For all of the foregoing reasons, the Court GRANTS Defendants’ summary
6
judgment motion (Dkt. # 52) IN PART. The Court GRANTS the motion as to Ms.
7
Washburn’s claims that Defendants violated the FMLA and its state-law counterpart by
8
9
10
11
failing “to return her job to her when she returned from leave” and by retaliating against
her for taking leave, except to the extent Plaintiffs allege Ms. Washburn was threatened
with demotion. It also GRANTS Defendants’ motion as to Ms. Washburn’s ADA and
WLAD claims to the extent she relies on allegations of mistreatment by co-workers,
entitlement to extended leave, or a requirement that Gymboree displace other workers to
12
accommodate Ms. Washburn. It also GRANTS Defendants’ motion as to any remaining
13
14
15
ADA claims against Ms. Anyan and Ms. Rackley.
Finally, the Court GRANTS Defendants’ motion as to Ms. Washburn’s defamation
and false light claims. The Court DENIES the motion in all other respects.
16
17
DATED this 4th day of September, 2012.
18
19
20
A
Robert S. Lasnik
United States District Judge
21
22
23
24
25
26
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 31
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?