Carby v. DaVita Dialysis

1

2

3 FILED IN THE

U.S. DISTRICT COURT

4 EASTERN DISTRICT OF WASHINGTON

Jul 22, 2020

5

SEAN F. MCAVOY, CLERK

6

7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF WASHINGTON

9

NICOLE LYNN CARBY,

10

11 Plaintiff, NO. 4:20-CV-05059-SAB

12

v.

13 ORDER DISMISSING

DAVITA DIALYSIS and DAVITA

14 COMPLAINT WITH LEAVE TO

HEALTHCARE PARTNERS,

15 AMEND; DENYING MOTION

Defendants.

16 TO DISMISS AS PREMATURE

17

18 Before the Court is Plaintiff’s pro se Complaint, ECF No. 1. Plaintiff alleges

19 that she was retaliated against and discriminated against by Defendants, her former

20 employers, for needing to take time off from work under the Family Medical

21 Leave Act to care for her disabled daughter. Her motion to proceed in forma

22 pauperis was granted on April 14, 2020. ECF No. 3.

23 When a plaintiff proceeds in forma pauperis, the Court is required to

24 review the complaint, and must dismiss the action at any time if it

25 determines that the action is “frivolous, malicious or fails to state a claim on

26 which relief may be granted; or . . . seeks monetary relief against a defendant

27 who is immune from such relief.” 28 U.S.C. §1915(e)(2).

28

1 Liberally construing the Complaint, Plaintiff alleges three general claims:

2 that she was discriminated against because of her daughter’s disability, that she

3 was discriminated against because of her own disability, and that she was retaliated

4 against for seeking accommodations under the Family Medical Leave Act. First,

5 she alleges that her daughter was in a car accident in April 2018 and is now

6 disabled and requires extra care. Plaintiff told her employers and submitted FMLA

7 documents indicating that she needed a reduced workload. Plaintiff alleges that

8 Defendants did not adjust Plaintiff’s workload to reflect the reduced hours she was

9 working. Second, Plaintiff alleges that the stress of not having her request

10 accommodated led her to suffer an injury on November 30, 2018, and that she was

11 placed on a “final warning.” At that point, Plaintiff submitted the need for a

12 personal accommodation under the FMLA and the Americans with Disabilities

13 Act. On March 15, 2019, Plaintiff again requested a reduced workload to reflect

14 the hours she was working. That same day, Plaintiff was denied a raise and told

15 that her accommodation of a reduced workload would not be granted. Plaintiff was

16 ultimately terminated from her job with Defendants on May 20, 2019. Defendants

17 said her termination was due to poor performance. On January 13, 2020, Plaintiff

18 received a Right to Sue letter from the Equal Employment Opportunity

19 Commission.

20 The ADA provides that is unlawful to discriminate against individuals in the

21 course of employment on the basis of their disability. 42 U.S.C. § 12112(a). The

22 ADA covers both discrimination against a person based on their own disability and

23 discrimination against a person based on their relationship with a person with a

24 known disability. 42 U.S.C. § 12112(b). For a claim based on one’s own disability,

25 the plaintiff must make a prima facie showing that (1) she is disabled; (2) was

26 discharged; (3) was doing satisfactory work; and (4) was replaced by someone not

27 in the protected class. McConnel Douglas Corp. v. Green, 411 U.S. 792, 802-04

28 (1973).

1 Insofar as Plaintiff alleges that she herself became disabled during the course

2 of her employment, the Court finds that insufficient facts have been provided to

3 show that Defendants discriminated against her. Plaintiff alleges that Defendants

4 did not give her a reasonable accommodation of a reduced workload, that she was

5 denied a raise, and that she was ultimately fired. However, Plaintiff does not

6 provide sufficient facts from which the Court could conclude that Defendants

7 violated the ADA. Thus, Plaintiff is given leave to amend her ADA claims as to

8 her own disability.

9 A claim for associational discrimination under the ADA is analyzed through

10 a modified McConnel Douglas approach. Bukiri v. Lynch, No. SACV 15-894-JLS

11 (DFMx), 2015 WL 13358192 at *3 (C.D. Cal. Sept. 9, 2015) (citing Magnus v. St.

12 Mark United Methodist Church, 688 F.3d 331, 336-37 (7th Cir. 2012)). A prima

13 facie case requires the following elements: (1) the plaintiff was subject to an

14 adverse employment action; (2) she was qualified for the job at that time; (3) her

15 employer knew at the time that she had a relative with a disability; and (4) the

16 adverse employment action occurred under circumstances that raised a reasonable

17 inference that the disability of the relative was a determining factor in the

18 employer’s decision. Id. (citing Wascura v. City of S. Miami, 257 F.3d 1238, 1242

19 (11th Cir. 2001)). If a plaintiff establishes a prima facie case and the defendant

20 then articulates a legitimate, nondiscriminatory reason for the adverse employment

21 action, the burden shifts back to the plaintiff to show that this reason was a pretext

22 for unlawful associational discrimination.

23 Plaintiff also alleges that she was discriminated against because Defendants

24 failed to reduce her workload in light of her reduced hours in order to take care of

25 her disabled daughter. The Court construes this claim as alleging Defendants failed

26 to provide a reasonable accommodation on the basis of Plaintiff’s daughter’s

27 disability. Although the ADA requires reasonable accommodations for one’s own

28 disabilities, it does not require employers to provide a reasonable accommodation

1 because a person has a relationship with someone who does have a disability. See

2 29 C.F.R. § 1630.8, Appendix (““[A]n employer need not provide ... [an]

3 employee without a disability with a reasonable accommodation because that duty

4 only applies to qualified ... employees with disabilities. Thus, for example, an

5 employee would not be entitled to a modified work schedule as an accommodation

6 to enable the employee to care for a spouse with a disability.”). Thus, insofar as

7 Plaintiff alleges she was discriminated and retaliated against on the basis of her

8 daughter’s disability rather than her own disability by failure to give her a

9 reasonable accommodation, her claims fail as a matter of law. However, the Court

10 gives Plaintiff leave to amend her Complaint so as to state a claim for associational

11 discrimination under the ADA if she chooses.

12 The Court also notes that Plaintiff alleges in her Complaint that her initial

13 requests for reduced workload were filed under the Family Medical Leave Act, and

14 that both of those requests were denied. Liberally construing the Complaint, the

15 Court next considers whether Plaintiff has stated a claim under the FMLA.

16 The FMLA provides that an eligible employee shall be entitled to a total of

17 12 workweeks of leave during any 12-month period to, inter alia, care for a spouse,

18 child, or parent if they have a serious health condition. 29 U.S.C. § 2612(a)(1)(C).

19 It is unlawful for an employer to interfere with, restrain, or deny the exercise of an

20 employee’s right to take FMLA leave. 29 U.S.C. § 2615(a)(1); Xin Liu v. Amway

21 Corp., 347 F.3d 1125, 1133 (9th Cir. 2003) (any violation of the FMLA itself or

22 implementing regulations constitutes interference with an employee’s rights under

23 the FMLA). Indeed, the regulations specify that employers cannot use the taking of

24 FMLA leave as a negative factor in employment actions. 29 C.F.R. § 825.220(c).

25 The FMLA creates “two interrelated, substantive employee rights: first, the

26 employee has a right to use a certain amount of leave for protected reasons, and,

27 second, the employee has a right to return to his or her job or an equivalent job

28 after using protected leave.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112,

1 1122 (9th Cir. 2001); see also 29 C.F.R. § 825.14. Unlike a discrimination or

2 retaliation claim, a FMLA interference claim is not susceptible to a burden-shifting

3 analysis. Bachelder, 259 F.3d at 1125. Instead, the employer must establish that he

4 had a legitimate reason to deny the employee reinstatement by firing her. Sanders

5 v. City of Newport, 657 F.3d 772, 780 (9th Cir. 2011).

6 Liberally construing Plaintiff’s Complaint, the Court could interpret the

7 Complaint to be raising a claim that Defendants interfered with Plaintiff’s right to

8 take FMLA leave in order to first care for her daughter, and later to care for

9 herself. However, more facts are needed in order to state a claim and survive

10 § 1915(e) review. Accordingly, the Court gives Plaintiff leave to amend this claim

11 as well.

12 Unless it is absolutely clear that amendment would be futile, a pro se

13 litigant must be given the opportunity to amend his complaint to correct any

14 deficiencies. Lopez, 203 F.3d at 1130. Accordingly, Plaintiff may submit an

15 amended complaint within sixty (60) days of the date of this Order which

16 includes sufficient facts to establish federal subject-matter jurisdiction.

17 Plaintiff's amended complaint shall consist of a short and plain statement

18 showing he is entitled to relief. Furthermore, Plaintiff shall set forth her

19 factual allegations in separate numbered paragraphs.

20 This amended complaint will operate as a complete substitute for (rather

21 than a mere supplement to) the present complaint. Plaintiff shall present her

22 complaint on the form provided by the court as required by LR 10.1(i), Local

23 Rules for the Eastern District of Washington. The amended complaint must be

24 legibly rewritten or retyped in its entirety, it should be an original and not a copy, it

25 may not incorporate any part of the original complaint by reference, and IT MUST

26 BE CLEARLY LABELED THE “FIRST AMENDED COMPLAINT” and

27 cause number No. 4:20-CV-05059-SAB must be written in the caption.

28

Additionally, Plaintiff must submit a copy of the “First Amended Complaint” for

2|| service on each named Defendant.

3 Finally, the Court notes that Defendants have filed a Motion to Dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(5). Defendants argue that the

5|| Court should dismiss this action because they were not served within 90 days of

filing pursuant to Rule 4(m). However, the Court finds that this Motion is

premature and is therefore denied. Pursuant to 28 U.S.C. §1915(d), the Court is

8|| responsible for issuing and serving process in cases brought by pro se plaintiffs

9|| after initially screening the complaint. Defendants filed their motion before the

10|| Court had screened the Complaint or issued and directed service of process. Thus,

motion to dismiss for failure to be served is premature and denied.

12 Accordingly, IT IS HEREBY ORDERED:

13 l. Plaintiff's Complaint, ECF No. 1 is dismissed with leave to amend.

14 2. Within 60 days from the date of this Order, Plaintiff shall file an

15|| Amended Complaint. If Plaintiff fails to comply with this order, the action will be

16|| dismissed.

17 3. Defendants’ Rule 12(b)(5) Motion to Dismiss, ECF No. 4, is DENIED as

18|| premature.

19 IT IS SO ORDERED. The District Court Executive is hereby directed to

file this Order and provide copies to Plaintiff and counsel.

21 DATED this 22nd day of July 2020.

22)

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24

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byt Secthan—

4 Stanley A. Bastian

38 United States District Judge

ORNER NICNITRCING CONMDT AINT WITH TEFAVE TO ANIENN.