Bryan v. Wal-Mart Stores, Inc.

Filing 17

ORDER granting #12 Defendant's Motion to Dismiss for Failure to State a Claim; this matter is DISMISSED WITH PREJUDICE; signed by Judge Ronald B. Leighton.(DN)

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HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JAMES H. BRYAN,

CASE NO. C13-5934 RBL

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Plaintiff,

ORDER GRANTING MOTION TO
DISMISS

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v.
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[Dkt. #12]
WAL-MART STORES, INC.,

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Defendant.
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I. SUMMARY
THIS MATTER is before the Court on Defendant Wal-Mart’s Motion to Dismiss [Dkt.

16 #12]. Plaintiff Bryan is a pharmacist formerly employed by Wal-Mart. He is also a self17 described former prescription drug addict, and he admits that he was charged with 17 counts of
18 forging prescriptions. He entered and successfully completed a Drug Court rehabilitation
19 program, and the charges were dismissed. He nevertheless surrendered his pharmacy license for
20 five years. The Pharmacy Board conditionally reinstated Bryan’s license in July, 2007.
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Bryan began working as a Wal-Mart pharmacy intern in September, 2007. He claims he

22 informed Wal-Mart of his prior license suspension, as he was required to do under the terms of
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ORDER GRANTING MOTION TO DISMISS - 1

1 his reinstatement. Bryan was promoted to staff pharmacist1 in 2008, and he claims he performed
2 his job well and without incident until he was terminated in 2011. Bryan alleges that he was
3 terminated when (and because) Wal-Mart instituted a new “credentialing policy” under which
4 people with any history of adverse pharmacy board action are not eligible for employment. Wal5 Mart claims that, at the time of termination, Bryan was still on probation from the Pharmacy
6 Board; a point Bryan concedes.
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Bryan sued on behalf of himself and a class of similarly situated Wal-Mart employees

8 across the country, claiming that the Wal-Mart’s policy violates the Americans with Disabilities
9 Act, 42 U.S.C. §§12112 and 12114.
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Wal-Mart moves to dismiss, arguing that Plaintiff was terminated for forging

11 prescriptions, not because he was disabled.
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II. DISCUSSION

13 A. Fed. R. Civ. P. 12(b)(6) Standard.
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Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal

15 theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v.
16 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff’s complaint must allege
17 facts to state a claim for relief that is plausible on its face. See Aschcroft v. Iqbal, 129 S. Ct.
18 1937, 1949 (2009). A claim has “facial plausibility” when the party seeking relief “pleads
19 factual content that allows the court to draw the reasonable inference that the defendant is liable
20 for the misconduct alleged.” Id. Although the Court must accept as true the Complaint’s well21 pled facts, conclusory allegations of law and unwarranted inferences will not defeat a Rule 12(c)
22 motion. Vazquez v. L. A. County, 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell v. Golden State
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Wal-Mart describes his position as “pharmacy technician.”

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1 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “[A] plaintiff’s obligation to provide the ‘grounds’
2 of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
3 recitation of the elements of a cause of action will not do. Factual allegations must be enough to
4 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
5 (2007) (citations and footnotes omitted). This requires a plaintiff to plead “more than an
6 unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 129 S. Ct. at 1949 (citing
7 Twombly).
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On a 12(b)(6) motion, “a district court should grant leave to amend even if no request to

9 amend the pleading was made, unless it determines that the pleading could not possibly be cured
10 by the allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242,
11 247 (9th Cir. 1990). However, where the facts are not in dispute, and the sole issue is whether
12 there is liability as a matter of substantive law, the court may deny leave to amend. Albrecht v.
13 Lund, 845 F.2d 193, 195–96 (9th Cir. 1988).
14 B.
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Bryan’s disparate impact ADA claim is deficient.
Bryan claims that the Wal-Mart policy has a disparate impact, that the facially neutral

16 Wal-Mart policy had a disproportionate affect on individuals who are disabled within the
17 meaning of the ADA. He claims that the Wal-Mart policy discriminates against people (like
18 him) who are “disabled” due to addiction to alcohol or drugs, and/or have a record of chemical or
19 alcohol dependency, and who have successfully participated in a supervised rehabilitation
20 program. [See Dkt. #15]
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Wal-Mart’s Motion is based on its claim that Bryan has not pled (and cannot plausibly

22 plead) that he is “disabled” within the meaning of the ADA, and, more persuasively, that he was
23 not terminated for being a “recovered or recovering drug addict” but rather because he forged
24 prescriptions and had his license suspended.

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To establish an ADA claim, a plaintiff must prove that (1) he has a disability, (2) that

2 he was qualified for the job in question, and (3) an adverse employment decision was made
3 based on his disability. To prove that he was “disabled,” a plaintiff must
4 prove he had a physical or mental impairment that substantially limited at least one
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major life activity. See Wellington v. Lyon County Sch. Dist., 187 F.3d 1150, 1154 (9th Cir.
1999).
Wal-Mart argues that Bryan has not claimed2 that he is disabled, or plausibly alleged that
his disability substantially limits any major life activities. It also claims that Bryan has not
plausibly pled that he was “qualified” for the job in question.
Bryan’s response emphasizes that he is alleging a disparate impact claim; that WalMart’s facially-neutral policy tends to screen out qualified individuals with disabilities, i.e., those
who “have been addicted and who have successfully participated in a supervised rehabilitation
program.” [See Dkt. # 15 at 13]. He points to ADA authority holding, perhaps not surprisingly,
that addiction can be a disability, even after rehabilitation. See 42 U.S.C. §21114(b)(1)-(3).
But Bryan’s second argument—that the issue is not whether he was terminated for
forging prescriptions and being suspended, but is instead whether Wal-Mart can terminate him
on that basis where doing so would screen out a class of disabled persons—is not as viable.
Bryan argues that while an employer may take reasonable measures to ensure against
theft under 21 U.S.C. §830, that provision should not be read to “trump” the ADA.

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Wal-Mart also continues to argue that Bryan has not pled that he is disabled. But the
23 cure for that is not, as Wal-Mart appears to contend, dismissal with prejudice; it is amendment.
Bryan has demonstrated that his rehabilitated addiction can suffice, and he could so plead. That
24 is not the defect in Bryan’s claim.

[DKT. #12] - 4

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Wal-Mart’s Reply emphasizes that Bryan was terminated because of criminal forgery—

2 not any disability—and that the ADA distinguishes (as it must) between addiction and addiction3 related misconduct. It points out that Bryan has not and cannot point to any case supporting his
4 assertion that, under the ADA, a person’s addiction disability “trumps” his addition-related
5 misconduct. Indeed, as Wal-Mart argues, the opposite is true. See Pernice v. Chicago, 237 F.3d
6 783 (7th Cir. 2001), citing Newland v Dalton, 81 F.32D 904 (9th Cir. 1996).
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It is apparent from the Complaint and the materials that Wal-Mart terminated Bryan

8 because he had criminally forged prescriptions, and because that led to the suspension of his
9 pharmacy license. He was not terminated because he was a disabled, rehabilitated drug addict.
10 That termination is not actionable under the ADA, and Bryan cannot amend his complaint to
11 make it so.
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The Motion to Dismiss is GRANTED, and Bryan’s claims against Wal-Mart are

13 DISMISSED with prejudice.
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IT IS SO ORDERED.

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Dated this 4th day of March, 2014.

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A

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RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

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