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Mallard v. Battelle Energy Alliance, LLC

United States District Court, Ninth Circuit

June 6, 2013



B. LYNN WINMILL, Chief District Judge.


Before the Court is defendant's Motion to Dismiss plaintiff's complaint. (Dkt. 5). The motion is fully briefed and at issue, and the Court has determined that oral argument would not significantly assist the decisional process. Accordingly, the Court will resolve the motion without a hearing. Having thoroughly considered the pleadings, the Court will grant the motion, though it will allow plaintiff the opportunity to amend his complaint.


Plaintiff Richard Mallard worked in the fire department at the Idaho National Laboratory for approximately 25 years. In early 2005, defendant Battelle Energy Alliance, LLC began operating part of the lab. At that time, Mallard became a Battelle employee.

Roughly three years before Battelle began operating the lab, Mallard contracted meningitis. He had very high fevers and was hospitalized for several days. After recovering, Mallard returned to work, but he noticed a few difficulties with some tasks that he used to be able to easily perform, like calculating math in his head. Mallard saw a doctor, who concluded that although the meningitis and high fevers had caused some impairments, Mallard could still perform his job.

Mallard attempted to discuss the impairments with his manager, David Stonhill, but Stonhill refused to listen; instead he placed "unreasonable restrictions" on Mallard and, over the years, increased Mallard's workload so significantly that it became impossible for him to complete his work.

In mid to late 2008, Mallard complained to Battelle management, and Mallard and Stonhill began working with Battelle's Employee Assistance Program. Stonhill, however, eventually stopped attending.

On February 2, 2009, Mallard was summoned to Battelle's Human Resources office, where he was told that Battelle suspected he had a mental illness. Human Resources personnel then took Mallard's access badge and required him to undergo a limited physical assessment by the on-site physician, Dr. Johns. Dr. Johns told Mallard that Battelle was requiring him to get a neuropsychiatric evaluation from a doctor Battelle had selected, Dr. Theresa Ross. The same day, Battelle placed Mallard on unpaid administrative leave and required him to fill out short-term disability paperwork.

Mallard met with Dr. Ross twice, once on March 31, 2009 and again on April 2, 2009. Dr. Ross opined that Mallard was capable of performing his job, although she suggested a few accommodations. For example, she recommended that Mallard multi-task less and use written reminders to perform complex tasks more efficiently.

Despite Dr. Ross' opinion, Battelle refused to allow Mallard to return to work. When Mallard asked about returning to work, Battelle insisted that he obtain a "Return to Work" letter from his personal physician. Of course, Mallard's personal physician had never said he could not work in the first place. Also, while he was on this forced unpaid leave, Battelle sent a letter to Mallard informing him that he might be terminated without further notice because he had accumulated so much time off without pay.

Meanwhile, back at the lab, in Mallard's absence, some Battelle employees were apparently telling Mallard's co-workers that he had psychological problems. One of Mallard's co-workers said he had heard that Mallard's cheese had slipped off his cracker. Mallard believes this is a euphemism for mental illness.

In July 2009, some five and one-half months after he was placed on administrative leave, Mallard returned to work. The same day he returned to work, Battelle asked Mallard to report to HR to discuss his job performance. HR required Mallard to sign a Performance Improvement Plan, that included a description of what Mallard describes as "supposed specific performance criteria' that were not being met." Compl. ¶ 36. This plan did not mention any of the accommodations Dr. Ross had recommended. Battelle also told Mallard that he must "continue to meet with [Battelle's] Employee Assistance Program." Id. ¶ 37.

In September 2009, Mallard and his lawyer met with Battelle in an attempt to resolve the requested accommodations, back pay, and the performance improvement plan. These attempts were unsuccessful and on April 19, 2010, [1] Mallard filed separate charges of discrimination with the Idaho Human Rights Commission and the Equal Employment Opportunity Commission.

Roughly eighteen months later, in September 2011, Mallard took an early retirement, though he had hoped to finish his career at Battelle. He received right-to-sue letters from the Idaho Human Rights Commission and the Equal Employment Opportunity Commission (EEOC) in September 2012. He filed this action in November 2012. In his first amended complaint, Mallard alleges four claims: (1) violation of the Americans with Disabilities Act (the ADA) (2) violation of the Idaho Human Rights Act; (3) hostile work environment; and (4) retaliation for engaging in activity under the Idaho Human Rights Act and the ADA.

In its motion to dismiss, Battelle attacks Mallard's hostile work environment claim. Battelle also attacks the remaining claims, but only to the extent such claims are based on alleged adverse employment acts that occurred before the relevant limitations periods. Finally, Battelle argues that any constructive discharge claim alleged within the complaint is barred because Mallard failed to include this charge in his administrative complaint.


Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief, " in order to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Supreme Court identified two "working principles" that underlie Twombly in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, the court need not accept as true, legal conclusions that are couched as factual allegations; Rule 8 does not "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79. Second, to survive a motion to dismiss, a complaint must state a plausible claim for relief. Id. at 679.

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. Twombly, 550 U.S. at 556. "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

Providing too much in the complaint may also be fatal to a plaintiff. Dismissal may be appropriate when the plaintiff has included sufficient allegations disclosing some absolute defense or bar to recovery. See Weisbuch v. County of L.A., 119 F.3d 778, 783, n.1 (9th Cir.1997) (stating that "[i]f the pleadings establish facts compelling a decision one way, that is as good as if depositions and other... evidence on summary judgment establishes the identical facts").

A dismissal without leave to amend is improper unless it is beyond doubt that the complaint "could not be saved by any amendment." Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) (issued two months after Iqbal ).[1] The Ninth Circuit has held that "in dismissals for failure to state a claim, 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." Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not whether plaintiff will prevail but whether he "is entitled to offer evidence to support the claims." Diaz v. Int'l Longshore & Warehouse Union, 474 F.3d 1202, 1205 (9th Cir. 2007) (citations omitted).


1. Mallard's Discrimination and Retaliation Claims

Mallard alleges that Battelle violated the ADA and the Idaho Human Rights Act. Mallard's ADA claims are subject to a 300-day[2] limitations period. See 42 U.S.C. § 2000e(5)(e)(1). His Idaho Human Rights Act claims are subject to a one-year limitations period. See Idaho Code §§ 67-5907(1), 67-5908(2).

Mallard filed his administrative complaint on April 19, 2010. Counting backwards from this date, Mallard's ADA claim is limited to adverse employment decisions that took place on or after June 23, 2009. (June 23, 2009 is 300 days before April 19, 2010). Mallard's Idaho Idaho Human Rights Commission Act claim is ...

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