Abdullah-El v. Bon Appetit Mgmt. Co.

• Decision Date: 03 May 2016
• Docket Number: CASE NO. C15-1946JLR
• Court: U.S. District Court — Western District of Washington
• Parties: HANNIBAL ABDULLAH-EL, Plaintiff, v. BON APPETIT MANAGEMENT COMPANY, Defendant.

HANNIBAL ABDULLAH-EL, Plaintiff, v. BON APPETIT MANAGEMENT COMPANY, Defendant.

CASE NO. C15-1946JLR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

May 3, 2016

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

Before the court is Defendant Bon Appetit Management Company's motion to dismiss. (Mot. (Dkt. # 19).) This is an employment case in which pro se Plaintiff Hannibal Abdullah-El sues Bon Appetit for various forms of discrimination and retaliation. (See Compl. (Dkt. # 5).) Bon Appetit moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss all of Mr. Abdullah-El's claims for failure to state a claim. (See Mot.) Mr. Abdullah-El has filed no opposition to the motion. (See Dkt.) The court has reviewed the motion, the relevant portions of the record, and the applicable law. Being fully advised,¹ the court GRANTS Bon Appetit's motion as set forth below.

II. BACKGROUND²

Mr. Abdullah-El began working for Bon Appetit in February 2013 as a food server. (See Compl. Ex. A at 4 ("EEOC Charge").) He alleges that between July 2013 and February 2014 several coworkers behaved inappropriately toward him. (See id. Ex. F at 2-14 ("Compl. to EEOC") at 1-4.) For instance, he alleges that a coworker once came up behind him and pressed up against him. (See id. at 1.) Another coworker, Mr. Abdullah-El alleges, called him "honey" and pointed at his buttocks on one occasion. (See id. at 2.) According to Mr. Abdullah-El, he addressed these episodes with the coworkers in question and the behavior did not recur. (See id. at 1-2.)

Mr. Abdullah-El also alleges that (1) a third coworker, who appeared to be high on drugs at the time, sniffed in the area of Mr. Abdullah-El's testicles, (2) a manger once stated that "if individuals were going to be harassed . . . then he [the manager] wanted to be included not excluded," and (3) a "shift lead" named Zach tugged on Mr. Abdullah-El's belt loops on one occasion and asked why he was not in proper uniform. (See id. at 3-4.) Mr. Abdullah-El was not sure whether Zach was making sexualadvances or trying to pick a fight. (Id. at 4.) Mr. Abdullah-El does not allege that any of these individuals ever repeated such conduct and, in fact, he states that the sniffing behavior "never happened again." (Id. at 3.) Furthermore, he admits that he did not report harassment to Bon Appetit. (See Compl. at 17.)

In February 2014, Mr. Abdullah-El informed his manager that his back and ankle hurt due to a prior injury. (See id. at 8-9; Compl. to EEOC at 1.) He asked for time off from work, which Bon Appetit granted. (See Compl. to EEOC at 1; Compl. at 9.) Mr. Abdullah-El returned to work several days later but left shortly thereafter, claiming that he required a medical leave of absence. (See Compl. at 9; Compl. to EEOC at 5.) Bon Appetit asked Mr. Abdullah-El to provide medical documentation to support his leave request. (See Compl. at 9-10 & Exs. C-D; Compl. to EEOC at 5-6.) Mr. Abdullah-El claims that he provided such documentation. (See Compl. at 4, 9-10, 12.) Bon Appetit disputes that claim and asserts that Mr. Abdullah-El's absence was therefore unexcused. (See Mot. at 3-4; Compl. Ex. D ("5/28/14 Letter").)

In late May 2014, after Mr. Abdullah-El had been absent from work for approximately three months, Bon Appetit terminated Mr. Abdullah-El's employment. (See 5/28/14 Letter at 1 (informing Mr. Abdullah-El that his employment is terminated for unexcused absence).) Mr. Abdullah-El responded by filing a charge with the Equal Employment Opportunity Commission ("EEOC"). (EEOC Charge; Compl. to EEOC at 1.) The EEOC investigated Mr. Abdullah-El's charge but declined to pursue the matter. (See Compl. Ex. A at 3 ("Right to Sue") (dated 9/22/15).) Mr. Abdullah-El then filed this lawsuit. (See Compl.; IFP Mot. (Dkt. # 1) (dated 12/10/15).)

Mr. Abdullah-El asserts claims for disability discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; failure to accommodate under the ADA; discrimination on the basis of his race, sex, and religion under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e; retaliation under Title VII; sexual harassment under Title VII; and violation of the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d). (See Compl. at 13-18.) Mr. Abdullah-El also suggests that he has a claim under 42 U.S.C. § 1983. (See id. at 2 ("This is a Title VII complaint, with title 42 Section §1983 elements also.") (emphasis in original).) Finally, he asserts that a "non-existent union" victimized him and failed to represent him. (Id. at 18.)

Bon Appetit moves to dismiss all of Mr. Abdullah-El's claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. (See Mot.) Mr. Abdullah-El has filed nothing in opposition. (See Dkt.) Bon Appetit's motion is now before the court.

III. DISCUSSION

A. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court construes the complaint in the light most favorable to the non-moving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The court must accept all well-pleaded allegations of material fact as true and draw all reasonable inferences in favor of the plaintiff. See Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state aclaim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663.

The court, however, need not accept as true a legal conclusion presented as a factual allegation. Id. at 678. Although the pleading standard announced by Federal Rule of Civil Procedure 8 does not require "detailed factual allegations," it demands more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citing Twombly, 550 U.S. at 555). A pleading that offers only "labels and conclusions or a formulaic recitation of the elements of a cause of action" will not survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Id. The court may consider the pleadings, documents attached to the pleadings, and documents incorporated by reference in the pleadings. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (citing Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002)).

B. Disability Discrimination under the ADA

In order to prevail on an employment termination claim under the ADA, a plaintiff must establish that (1) he is a disabled person within the meaning of the ADA; (2) he is qualified, that is, with or without reasonable accommodation, he is able to perform the essential function of the job; and (3) his employer terminated him because of his disability. Kennedy v. Applause, Inc., 90 F.3d 1447, 1481 (9th Cir. 1996); see Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015). Even if Mr. Abdullah-El hasplausibly alleged the first two elements—a subject on which the court expresses no opinion at this time—he fails to plausibly allege the third element.

Mr. Abdullah-El alleges that he lost his job after taking a several-month-long leave of absence due to ankle and back pain. (See Compl. at 5, 9-10, 13.) He alleges that he provided medical documentation to support his leave request and therefore that Bon Appetit's contention that he was fired for failing to provide such documentation is a pretext for discrimination. (See id. at 4-5, 9-10, 12-13.) In support of this allegation, Mr. Abdullah-El refers the court to March 12, 2014, treatment notes from a physician's assistant ("PA"), whom he refers to as Dr. Tu. (See id. at 4 ("[Bon Appetit claims] that prior to my discharge they . . . reached out to me . . . requesting for me to provide medical certification to support my time away, this was provided (dr. note from Dr. Tu see exhibits K and L)."), 9 ("It is true as seen in Exhibit B I provided medical documentation that did not excuse me from work. However in the medical documentation provided by Dr. Tu (see note from Dr. Tu) it states . . . how much time may be needed off from work."), 12 ("My absence was excused and I did not fail to submit medical documentation, which supported my medical leave of absence (see exhibit . . . page . . . dr. note from Dr. Tu).") (omissions and emphasis in original).) Mr. Tu, however, found that Mr. Abdullah-El should not have been missing work. (See Id. Ex. K at 14 (answering "No" in response to the question "Will the condition cause the patient to miss work?").) The court cannot plausibly infer from this record that Bon Appetit terminated Mr. Abdullah-El because of a disability. Accordingly, the court dismisses Mr. Abdullah-El's disability discrimination claim.

C. Failure to Accommodate under the ADA

To prevail on a failure to accommodate claim, a plaintiff must show, among other things, that his employer had notice of his disability and failed to reasonably accommodate him. See McDaniels v. Grp. Health Co-op., 57 F. Supp. 3d 1300, 1314 (W.D. Wash. 2014). Mr. Abdullah-El alleges no facts from which the court could infer that Bon Appetit failed to reasonably accommodate him. (See also Compl. at 12 ("I did previously when hired and during my employment mention my ankle injury and pain but didn't request any special accommodation.")); Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1188 (9th Cir. 2001) (explaining that generally the employee must make the initial request for accommodation). The court therefore dismisses his failure to accommodate claim.

D. Discrimination on the Basis of...