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Mallard v. Battelle Energy Alliance, LLC

United States District Court, Ninth Circuit

October 31, 2013



B. LYNN WINMILL, Chief District Judge.


Before the Court is defendant's Motion to Dismiss Counts Three and Four and Portions of Counts One, Two, and Five of Plaintiff's Second Amended Complaint (Dkt. 17). The motion is fully briefed and the Court has determined that oral argument would not significantly assist the decisional process. The Court will therefore resolve the motion without a hearing. As explained below, the Court will grant the motion, in part, and deny the motion in part.

The Court will grant Battelle's motion to dismiss plaintiff's wage discrimination claims (Counts 3 and 4). As for the remaining claims, the Court will deny the motion to dismiss any portion of Mallard's claims under the Idaho Human Rights Act. The Court will, however, grant the motion to the extent Mallard seeks to recover under the ADA for events occurring before February 12, 2009.


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 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 mid-July, roughly five months after he was placed on administrative leave, Battelle's lawyer contacted Mallard's lawyer to arrange for his return to work. At this time, Battelle's lawyer also "initiated a meeting to see if the matter could be resolved pursuant to BEA's [Battelle] mandatory alternative dispute resolution (ADR') process." Second Am. Compl., Dkt. 16, ¶ 39.

The meeting was scheduled for July 28, 2008, "but had to be cancelled by BEA. It was rescheduled for September 23, 2009." Id. ¶ 40. In the meantime, on July 21, 2008, 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." Id. ¶ 38. 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.

On September 23, 2009, Mallard and his lawyer attended the scheduled meeting in an attempt to resolve the requested accommodations, back pay, and the performance improvement plan. Mallard understood this meeting was meant to comply with Battelle's mandatory ADR program. Battelle refused Mallard's requests although, at the end of the meeting, Battelle's counsel allegedly told Mallard she would "get back to Mallard's counsel regarding his request for backpay, but asserted he should pursue short-term disability benefits." Id. ¶ 42. On November 23, 2009, Mallard's counsel received correspondence from Battelle's lawyer indicating Battelle would not pay Mallard for his unpaid leave. Id. ¶ 43.

On April 19, 2010, [1] Mallard filed separate charges of discrimination with the Idaho Human Rights Commission and the Equal Employment Opportunity Commission. Afterward, 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 ...

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