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May v. ALS Group USA, Corp.

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

April 19, 2018

MATTHEW MAY, Plaintiff,
v.
ALS GROUP USA, CORP., Defendant.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT [DKT. # 32]

          RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on defendant ALS Group's Motion for Complete Summary Judgment [Dkt. # 32] and on Plaintiff May's responsive Motion to Voluntarily Dismiss his federal law claims and remand the remaining state law claims to state court [Dkt. # 35]. The case was filed in 2016. The dispositive motion deadline was February 6 [Dkt. # 15]. Both pending motions were filed March 22, and trial is scheduled[1] for May 7.

         May was employed by ALS as a scientist. In July 2012 May was found asleep at his desk three times in one week, ALS sent him home and asked him to see a doctor. He returned with a preliminary diagnosis of obstructive sleep apnea, and ALS asked him to undergo the sleep study his doctor recommended. Nevertheless, his doctor and ALS permitted him to return to work.

         May did not follow through on the sleep study (until almost three years later, after he was terminated). In the meantime, he continued to have a “poor (2 out of 5) attitude” and he continued make mistakes and to frequently fall asleep at work. ALS claims May admits he did so, that he sometimes spilled hot tea on himself, and that he once fell asleep while writing on a small sample vial, which he dropped.

         In June 2014 ALS placed May on probation, and issued him a written “corrective action form” outlining four areas of concern, one of which was specifically “sleeping at work” and related performance issues. He was told that if his performance did not improve he would be terminated. ALS claims May never asked for any sort of accommodation and instead said he would get the sleep study. It claims May's performance did not improve and it fired May on July 21, 2014.

         In November 2016, May sued in state court, asserting claims under the ADA and the WLAD. He claims he was terminated for the symptoms of his disability, sleep apnea. May also claimed he was wrongly discharged in violation of public policy, and asserts claims for intentional and negligent infliction of emotional distress. ALS timely removed the case here based on the federal question (ADA) presented on the face of the complaint.

         ALS seeks “complete” summary judgment, arguing that May cannot establish he was a qualified individual (ADA) or that he was doing satisfactory work (WLAD). It argues that even if he could, it had a legitimate, non-discriminatory reason for firing him: his performance was lacking and his falling asleep in the lab was dangerous for him and others. ALS claims May cannot meet his McDonnel Douglas burden of demonstrating that his termination one these bases was pretextual.

         In response, May seeks to voluntarily dismiss[2] his federal (ADA) claims and asks the Court to remand the case to state court. ALS opposes that effort, claiming prejudice from the passage of time, its pending dispositive motion, and the impending trial date. It also argues that the parties are diverse and the amount in controversy exceeds the jurisdictional limit, so the court has diversity jurisdiction, even if May's federal claims are dismissed.

         May also argues that he undertook “remedial measures” regarding his sleep apnea in 2013, and that he worked “without incident” until 2014, when he admits he again made mistakes because of his sleep-apnea related fatigue.

         May claims that in response to his written warning, he made an appointment for the sleep study, but was fired before it was completed. He claims ALS failed to engage in any “interactive process” to ascertain what reasonable accommodation might be effective; it instead told him he was not “covered” by the ADA because his diagnosis was only preliminary and he had failed to follow up with the sleep study. He claims he was terminated for displaying the symptoms of his disability, in violation of the ADA and the WLAD.

         A. Motion to Dismiss/Remand

         May's Motion to Voluntarily Dismiss (without prejudice) his Federal Claims and for Remand is DENIED. It is simply too late in the process, and there is a dispositive motion pending. It is not fair to the defendant to permit this delay tactic after this much work and this close to a resolution through either the motion or the trial. Remanding the case would obviously delay that resolution months, if not years.

         B. Motion for ...


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