# Carby v. DaVita Dialysis

> District Court, E.D. Washington · July 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10696853

## Case

- **Court:** District Court, E.D. Washington
- **Decided:** July 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10696853

## Opinion text

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)
23
24
25
byt Secthan—
4 Stanley A. Bastian
38 United States District Judge

ORNER NICNITRCING CONMDT AINT WITH TEFAVE TO ANIENN.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10696853. Public record. Not legal advice.