Armijo v. Yakima Hma, LLC

• Decision Date: 11 April 2012
• Docket Number: No. 11–CV–03114–TOR.,11–CV–03114–TOR.
• Citation: 868 F.Supp.2d 1129
• Parties: Louise ARMIJO, Plaintiff, v. YAKIMA HMA, LLC, Defendant.
• Court: U.S. District Court — District of Washington

868 F.Supp.2d 1129

Louise ARMIJO, Plaintiff,

v.YAKIMA HMA, LLC, Defendant.

No. 11–CV–03114–TOR.

United States District Court, E.D. Washington.

April 11, 2012.

Victor Ro, The Ro Firm, P.S.C., Kirkland, WA, for Plaintiff.

Paula L. Lehmann, Maria Abramova, Davis, Wright, Tremaine, LLP, Bellevue, WA, for Defendant.

ORDER RE: MOTION TO DISMISS AND MOTION TO AMEND

THOMAS O. RICE, District Judge.

BEFORE THE COURT is Defendant Yakima HMA, LLC's Motion to Dismiss certain claims (ECF No. 7). Also before the Court is Plaintiff's Alternative Motion for Leave to Amend her complaint (ECF No. 16). The Court heard oral argument by telephonic hearing on March 22, 2012. Victor Ro appeared on behalf of the Plaintiff, Louise Armijo. Paula L. Lehmann and Maria Abramova appeared on behalf of Defendant Yakima HMA, LLC. The Court has reviewed the motions, the responses, the record and files herein and is fully informed.

The Parties are reminded to follow the Local Rules for the Eastern District of Washington, including, but not limited to Rule 10.1(a)(2) requiring double spaced footnotes and all typed matter in at least 14 point typeface or monospaced typeface of no more than 10.5 characters per inch. In the future, offending pleadings will be stricken.

At the outset of the hearing, the Court questioned Plaintiff whether it would be appropriate to dismiss all the individual defendants who had not been served within 120 days as required by Fed.R.Civ.P. 4(m). Counsel for Plaintiff indicated no objection to the dismissal of individual defendantswho had not been served. Accordingly, those individuals will be dismissed and the caption of this case amended to reflect this Order.

BACKGROUND

On June 28, 2010, Ms. Armijo was discharged from her job as a financial counselor for Yakima HMA, LLC, doing business as Toppenish Community Hospital. This suit, seeking damages and other relief, was filed November 17, 2011. Plaintiff filed a First Amended Complaint on January 5, 2012, a 75–page document seeking relief for her termination and for the alleged acts leading up to and culminating in her termination, under various legal theories.

Defendant moved to dismiss the following 10 claims out of the 15 claims in the Complaint:

(i) wrongful discharge in violation of public policy;

(ii) failure to accommodate;

(iii) intentional infliction of emotional distress (outrage);

(iv) negligent infliction of emotional distress;

(v) negligent hiring, training, managing and supervision;

(vi) negligent retention;

(vii) defamation, libel and slander;

(viii) invasion of privacy by false light;

(ix) failure to pay overtime; and

(x) breach of contract.

DISCUSSION

To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. (“Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation” (internal quotation marks omitted)). A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Id. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Id. at 1950. In assessing whether Rule 8(a)(2) is satisfied, the Court first identifies the elements of the asserted claim based on statute or case law. Id. at 1949. The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:

“[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”

Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir.2009) ( quoting Iqbal, 129 S.Ct. at 1950).¹

The Ninth Circuit has repeatedly held that “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.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000). The standard for granting leave to amend is generous. The court considers five factors in assessing the propriety of leave to amend—bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint. United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir.2011).

1. Wrongful Discharge in Violation of Public Policy.

To state a claim for wrongful termination in violation of public policy, a plaintiff must satisfy a four factor test. The plaintiff must show:

(1) the existence of a clear public policy (the clarity element);

(2) that discouraging the conduct in which he or she engaged would jeopardize the public policy (the jeopardy element);

(3) that the public-policy-linked conduct caused the dismissal (the causation element); and

(4) that the defendant has not offered an overriding justification for the dismissal (the absence of justification element).

Cudney v. ALSCO, Inc., 172 Wash.2d 524, 529, 259 P.3d 244 (2011) (italics and brackets omitted). These elements are conjunctive, meaning that all four elements must be proved. Id. This public-policy based wrongful-termination claim is a narrow exception to Washington's general rule of employment at will. Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 232, 685 P.2d 1081 (1984). The plaintiff “must plead and prove that a stated public policy, either legislatively or judicially recognized, may have been contravened.” Thompson, 102 Wash.2d 219 at 232–33, 685 P.2d 1081, 1089. Washington courts have generally recognized the public policy exception when an employer terminates an employee as a result of his or her (1) refusal to commit an illegal act, (2) performance of a public duty or obligation, (3) exercise of a legal right or privilege, or (4) in retaliation for reporting employer misconduct. Danny v. Laidlaw Transit Services, Inc., 165 Wash.2d 200, 208, 193 P.3d 128, 132 (2008).

Plaintiff's wrongful discharge allegations are contained in paragraphs 187 through 193 of her first Amended Complaint (ECF No. 5). Plaintiff only identifies Washington's Law Against Discrimination, RCW 49.60.180 (WLAD) and Washington's Law Against Retaliatory Discharge, RCW 51.48.025 (WLARD), as the public policies being violated. Plaintiff's reasoning is circular. These two statutes provide for a cause of action themselves. They do not support a third cause of action for wrongful discharge as there is no additional “jeopardy” not already protected by the statutes themselves.Plaintiff has not shown that WLAD and WLARD are “inadequate to protect public policy.” See Cudney v. ALSCO, Inc., 172 Wash.2d at 530–31, 259 P.3d at 247.

The Court finds this cause of action insufficient. Plaintiff has already amended her complaint once and the Court finds that further amendment as to this cause of action would be futile.

2. Failure to Accommodate.

Under RCW 49.60.180, a disabled employee has a cause of action for at least two different types of discrimination. The employee may allege failure to accommodate where the employer failed to take steps “reasonably necessary to accommodate the employee's condition.” Jane Doe v. Boeing Co., 121 Wash.2d 8, 17, 846 P.2d 531 (1993). The employee also may file a disparate treatment claim if the employer discriminated against the employee because of the employee's condition. Riehl v. Foodmaker, Inc., 152 Wash.2d 138, 145, 94 P.3d 930, 934 (2004). The Washington Supreme Court has laid out four elements that an employee must show to prove discrimination based on lack of accommodation:

(1) the employee had a sensory, mental, or physical abnormality that substantially limited his or her ability to perform the job; (2) the employee was qualified to perform the essential functions of the job in question; (3) the employee gave the employer notice of the abnormality and its accompanying substantial limitations; and (4) upon notice, the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the abnormality.

Riehl v. Foodmaker, Inc., supra.

Plaintiff's failure to accommodate allegations are contained in paragraphs 202 through 206 of her First Amended Complaint. Plaintiff's allegations are the type of wholly inadequate statements condemned in Twombly and Iqbal. Plaintiff responded that she provided a list of facts supporting this claim (incorporating the prior 202 paragraphs of the Complaint by reference), specifically she points to the First Amended Complaint paragraphs 35, 36, 38, 39, 42 and 184 et seq. Other than conclusory statements, however, none of...