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Easton v. Asplundh Tree Experts, Co.

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

January 12, 2018

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

          ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT

          RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Plaintiff's Motion for Leave to Amend her Complaint, which seeks permission to add a retaliatory discharge claim against Defendant. Dkt. #47. Defendant opposes the motion arguing that Plaintiff's proposal is prejudicial, futile and unduly delayed. Dkt. #48. Trial is currently scheduled for March 19, 2018. For the reasons set forth herein, the Court DENIES Plaintiff's motion.

         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 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 those Disclosures she stated that she had “not determined all damages and claims for special 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 amount of her wage loss claim was “beyond the scope of permissible discovery, ” but answered:

Plaintiff has yet to consult with an economic loss or vocational expert to determine the actual damages. Plaintiff will supplement with that information as soon as it becomes available.

Id., Ex. 6 at 10. Plaintiff has never provided Defendant with a specific calculation of her alleged wage loss damages.

         On October 10, 2017, Defendant moved for partial summary judgment. Dkt. #36. Defendant argued that Plaintiff's claim for past and future wage loss should be dismissed because she failed to plead a cause of action for retaliatory discharge. Dkt. #36 at 10-11. The Court agreed. Dkt. #43. First, the Court noted that

Plaintiff did not include an actual Cause of Action for retaliatory discharge. See Dkt. #1-1 at ¶ ¶ 33-45. Instead, she pleaded five causes of action as follows: 1) violation of Washington's Law Against Discrimination (“WLAD”) based on sex (female); 2) intentional infliction of emotional distress; 3) respondeat superior; 4) negligent hiring and supervision and failure to train; and 5) hostile work environment. Id.

Dkt. #43 at 6. As a result, the Court found that

[t]he allegations contained in Plaintiff's alleged fact section of her Complaint do not satisfy the “short and plain statement” requirement included in Rule 8. Plaintiff alleges that she was laid off as a result of her complaints, under the pretext of budgetary constraints. Dkt. #1-1 at ¶ 24. However, because she failed to plead a corresponding cause of action for retaliatory discharge, she does not identify any legal basis for her claim. Plaintiff's failure to specifically allege the elements of retaliatory discharge restricted Defendant's ability to respond to the alleged cause of action or to conduct discovery on that cause of action, and makes it nearly impossible for the Court to evaluate the sufficiency of her allegations. Indeed, the Court cannot even determine whether she asserts a cause of action under state or federal law.

Id. at 6-7.

         In addition, the Court determined that Plaintiff will be precluded from offering evidence of lost past and future wages because “[a]t no point in this litigation did plaintiff quantify - even roughly - the amount of actual damages she suffered as a result of her layoff.” Dkt. #43 at 7. “In fact, she states she does not intend to ask for any specific amount at trial. However, making certain documents available and promising that someone (in this case Plaintiff) will testify regarding ...


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