United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant's Motion for
Partial Summary Judgment. Dkt. #36. Defendant seeks dismissal
of Plaintiff's claim for past and future lost wages,
which purportedly arise from a claim for retaliatory
discharge. Id. Defendant argues that because
Plaintiff failed to plead such a cause of action, and has
failed to provide a calculation of damages as required under
the Federal Rules of Civil Procedure, the unpled claim and
request for associated damages must be dismissed.
Id. Plaintiff responds that Defendant has been on
notice of a claim for retaliatory discharge since she filed
her EEOC complaint prior to litigation, and that she has
provided sufficient damages information, and therefore her
claims should not be dismissed. Dkt. #40. For the reasons set
forth below, the Court disagrees with Plaintiff, and GRANTS
Defendant's Motion for Partial Summary Judgment.
an employment action in which Plaintiff raises claims for
violations of Washington's Law Against Discrimination
(“WLAD”) based on sex (female), intentional
infliction of emotional distress, respondeat superior,
negligent hiring and supervision and failure to train, and
hostile work environment. Dkt. #1-1. Plaintiff alleges that
she had been hired by Defendant as a flagger and was
subsequently sexually harassed by her male supervisor. Dkt.
#1-1 at ¶ ¶ 1-10. Plaintiff further alleges that
after she reported the harassing behavior to another foreman
and a supervisor, she suffered retaliation, Defendant failed
to take appropriate corrective action, and she was eventually
laid off. Id. at ¶ ¶ 12-32.
earned her flagger's card and joined the union in Grays
Harbor County, where she was first dispatched out of the
union hall. Typically, members of a union “wait until
your name comes up to go out and work.” Dkt. #38, Ex. 1
at 46:5-7. Her first job was with Davey Tree Service,
however, “they lost the contract for Grays Harbor and
Asplundh took over.” Id. at 13:8-21. Plaintiff
has acknowledged that flagging jobs are typically short term.
For example, Plaintiff was a flagger for Coats, where she
worked for only a week until “the job ended, ”
and also for Stebbins until “the job ended.”
Id. at 37:8-25, 38:1-17, and 153:17-158:2. Further,
she worked as a short-term flagger for BC Traffic, Chicks of
All Trades, and Rognlin, among others, and also switched
unions to get more jobs. Id. at 38:1-3, 38:24-39:3,
began working for Defendant when it needed flaggers to assist
with a Contract for Vegetation Management Services and
Emergency Storm Response that Defendant had with the PUD. She
was one of two flaggers for that job. Dkt. #1-1 at ¶ 6
and Dkt. #37 at ¶ 3. Plaintiff alleges that while she
performed her flagging duties from October 2014 to August 7,
2015, a male supervisor sexually harassed her. Dkt. #1-1. She
reported the behavior, and Plaintiff was placed with a
different crew. Dkt. #38, Ex. 1 at 57:15-16. Shortly after
that, Plaintiff was laid off; however, she was rehired again
on or around September 27, 2015, and continued working until
she was laid off again in late October 2015. Dkt. #1-1 at
McClain, the Contract Construction Superintendent for the
PUD, oversaw and administered the Contract for Vegetation
Management Services and Emergency Storm Response. Dkt. #37 at
¶ ¶ 2-3. The Contract was a “time and
materials” contract. Id. at ¶ 4.
“The total amount of work to be performed under th[at]
Contract is the amount that the District requires, in its
sole discretion.” Id. at ¶ 4. Under the
contract, the PUD scheduled the work of Defendant at its sole
discretion. Id. at ¶ 5.
August 2015, and at various times thereafter, Mr. McClain
directed Defendant, through its General Foreman Robert Fly,
to conduct work that did not require flaggers. Id.
at ¶ 6. He did this in order to reduce the costs being
incurred by the PUD. Id. Defendant laid off its two
flaggers as a result. Defendant explained to Plaintiff that
the lay-off was “due to budget cuts.” Dkt. #38,
Ex. 1 at 18:19-21, Ex. 2 at 37:22-38:4 and Ex. 3 at 105:6-17.
Brief layoffs due to budget concerns were standard for the
industry. Id., Ex. 3 at 97:8-10. Defendant rehired
Plaintiff again when the “the contract construction
supervisor for the PUD told us that they had work that they
need flaggers for.” Dkt. #38, Ex. 3 at 110:1-5.
alleges in her Complaint that
[She] complained  to Mr. Fly on or around August 6, 2015.
She was laid off the following day under the pretense of
budget constraints. Plaintiff alleges that she was in fact
fired for her complaints of Mr. Mel's inappropriate,
harassing, and discriminatory behavior. . . .
Dkt. #1-1 at ¶ 24. She does not address the fact that
she was rehired again on or around September 27, 2015, and
continued working until she was laid off again in late
October 2015, although she included the fact in her
Complaint. Dkt. #1-1 at ¶ 6. Plaintiff did not plead a
cause of action for retaliatory discharge. See Dkt.
#1-1 at ¶ ¶ 33-45.
December 21, 2016, Plaintiff provided her Initial Disclosures
to Defendant. In and general damages and Plaintiff will
supplement this information.” Dkt. #38, Ex. 4 at 5.
further stated that she may seek “compensatory damages
for back pay, front pay, lost benefits and medical
expenses.” Dkt. #38, Ex. 4 at 5. On August 31,
2017, Plaintiff provided Supplemental Disclosures to
Defendant repeating the same verbiage. Id., Ex. 5 at
4. Subsequently, in her discovery responses, Plaintiff
objected that inquiries about the ...