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Easton v. Asplundh Tree Experts, Co.

United States District Court, W.D. Washington, Seattle

November 15, 2017

BRITTANY EASTON, Plaintiff,
v.
ASPLUNDH TREE EXPERTS, CO., Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This 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.

         II. BACKGROUND[1]

         This is 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.

         Plaintiff 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, and 163:7-24.

         Plaintiff 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 ¶ 6.

         Jeff 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.

         In 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.

         Plaintiff 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.

         On 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.

         She 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 ...


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