United States District Court, W.D. Washington, Tacoma
ORDER DENYING MOTION TO DISMISS [DKT. #21]
RONALD B. LEIGHTON, District Judge.
THIS MATTER is before the Court on Defendant's Motion to Dismiss. [Dkt. #21] Plaintiff Gary Mesmer worked for Defendant Charter Communications, Inc. for approximately six years as a Correspondence Coordinator. While working at Charter, he claims to have suffered from Post Traumatic Stress Disorder with ancillary symptoms of anxiety, panic attacks, and heart palpitations. Mesmer alleges that Charter failed to accommodate his disability, subjected him to sexual harassment, and then willfully violated his FMLA rights by firing him for attempting to take medical leave.
On October 23, 2014, Mesmer filed a Complaint alleging that he was terminated for discriminatory and retaliatory reasons related to his disability. He specifically alleged that Charter: (1) interfered with his leave under the FMLA; (2) retaliated in violation of the FMLA;
(3) interfered with his leave under the WFLA; (4) retaliated in violation of the WFLA; (5) failed to accommodate under the WLAD; and (6) discriminated against his disability in violation of the WLAD. Charter moved to dismiss.
Mesmer was granted leave to amend his Complaint to include additional facts to support his claims and to cure any pleading deficiencies. In his First Amended Complaint, Mesmer withdrew his FMLA and WFLA retaliation claims and added a sexual harassment claim. Charter filed a Motion to Dismiss the FMLA interference claim, failure to accommodate claim, and sexual harassment claim pursuant to FRCP 12(b)(6).
Charter argues that Mesmer's FMLA claims are time barred under the two-year statute of limitations unless a willful violation can be established to extend the limitation to three years. For the WLAD failure to accommodate claim, Charter contends that Mesmer failed to allege that his disability substantially limited his ability to perform his job functions. Finally, Charter argues that Mesmer failed to plead sufficient facts to support his WLAD sexual harassment claim.
Mesmer claims that he has alleged sufficient facts to support all of his claims. Regarding Charter's willful interference with leave and failure to accommodate claims, he contends that Charter was aware of its legal obligations under the FMLA and WLAD, of the existence of his disability, and of the disability's substantially limiting effect on his ability to perform his duties. Mesmer argues that these facts show a willful violation of the FMLA and that his disability warranted reasonable accommodation by Charter under the WLAD. Mesmer also contends that the First Amended Complaint includes facts pled to support a plausible claim of sexual harassment under the WLAD.
According to the First Amended Complaint, Mesmer was employed by Charter from October 10, 2005, until December 11, 2013. At some point during his employment, a male coworker, Pedro Sena, made "numerous unwanted sexual advances, " including an invitation to view "European pornography" at his home. Mesmer informed his supervisor, April Moudy, of the advances and asked to be assigned a different workstation. He claimed that interacting with Sena caused him anxiety and exacerbated his PTSD. Moudy denied his request unless he "could find another employee willing to sit next to Sena."
On November 30, 2011, Moudy told Mesmer that she was "tired of walking on eggshells around him because of his disability." Two days later, Mesmer allegedly told Moudy's supervisor, Lola Bozovisch, that Moudy had denied his request for reasonable accommodation and had failed to protect him from sexual harassment. Mesmer told Bozovisch that he would be seeking FMLA leave. Later that same day, Mesmer contacted Human Resources and requested the necessary paperwork to request medical leave. Mesmer was directed to Charter's intranet to obtain the necessary documents. Mesmer did not access the FMLA forms, however, either due to time constraints or an inability to locate the forms.
On December 5, 2011, Mesmer received a verbal warning regarding his attendance. Also on that day, Mesmer claims that he suffered severe anxiety symptoms during his shift requiring him to take numerous breaks throughout the day. Mesmer informed his supervisor of his symptoms, but he was not provided with any form of accommodation or leave. The following day, Mesmer explained to the call center director, Scott Carroll, and to Bozovisch that he had needed numerous breaks to manage his panic attacks, a symptom of PTSD. Mesmer was accused of deliberately disconnecting 38 calls to shorten his call times to which he responded as necessary due to his panic attacks. Mesmer was fired four days later in a meeting with Carroll, Bozovisch, and Moudy. That meeting allegedly caused another anxiety attack.
On October 23, 2014, Mesmer filed a complaint in Clark County Superior Court alleging discriminatory and retaliatory termination. The case was removed to this Court, and Charter filed a Fed.R.Civ.P. 12(b)(6) Motion to Dismiss. Mesmer was granted leave to amend his Complaint to plead additional facts. Charter then filed this Motion to Dismiss Mesmer's FMLA ...