United States District Court, W.D. Washington, Tacoma
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT [DKT. #
B. LEIGHTON UNITED STATES DISTRICT JUDGE.
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 for May 7.
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.
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.
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.
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
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
response, May seeks to voluntarily dismiss 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.
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
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.
Motion to Dismiss/Remand
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.
Motion for ...