Tellis v. Alaska Airlines, No. 2:2017cv00901 - Document 44 (W.D. Wash. 2018)
Court Description: ORDER granting in part and denying in part Plaintiff's 38 Motion for Leave to Amend; and granting Defendant's 23 Motion for Judgment on the Pleadings. Plaintiff shall file an amended complaint within twenty days of the date of this order. Signed by Judge Richard A. Jones. (TH)
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Tellis v. Alaska Airlines Doc. 44 1 THE HONORABLE RICHARD A. JONES 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 HERMAN CHARLES TELLIS, 10 Plaintiff, 11 12 Case No. 17-00901-RAJ v. ALASKA AIRLINES, INC., 13 ORDER Defendant. 14 This matter comes before the Court on Plaintiff’s Motion for Leave to Amend 15 16 17 18 19 20 21 22 23 24 25 26 27 (Dkt. # 38) and Defendant’s Motion for Judgment on the Pleadings (Dkt. # 23). Plaintiff is proceeding pro se. Both Motions are opposed. Dkt. ## 28, 40. For the reasons that follow, the Court GRANTS in part and DENIES in part Plaintiff’s Motion for Leave to Amend (Dkt. # 38), and GRANTS Defendant’s Motion for Judgment on the Pleadings (Dkt. # 23). I. BACKGROUND Plaintiff Herman Charles Tellis was hired by Defendant Alaska Airlines, Inc. as a Maintenance and Engineering Mechanic in 1990. Dkt. # 1-3. Prior to his resignation, Plaintiff made several complaints regarding Defendant to the U.S. Equal Employment Opportunity Commission (“EEOC”). Id. On February 8, 2013, Defendant notified Plaintiff that he could sign a resignation agreement and a settlement and release agreement in lieu of an involuntary termination. Id. at ¶ 5.8. Plaintiff signed both ORDER - 1 Dockets.Justia.com 1 agreements. Id. The settlement agreement contained a general release of claims and a 2 “No Reemployment” provision. Dkt. # 38. Several days later, Plaintiff revoked the 3 settlement and release agreement. Dkt. # 1-3 Ex. 1. 4 In November of 2013, the parties negotiated a new settlement agreement. Dkt. 5 ## 40, 41. Defendant represents that this new settlement agreement was actually three 6 settlement agreements. Dkt. # 40. The first is entitled, “Amendment to Confidential 7 Settlement and Release Agreement,” and refers back to the original February 2013 8 settlement agreement. Dkt. # 41 Ex. 1. The second settlement agreement was solely an 9 Age Discrimination in Employment Act (“ADEA”) settlement and release agreement 10 (“ADEA Agreement”). Dkt. # 41 Ex. 2. The third settlement agreement is not at issue 11 in this dispute. Plaintiff revoked the ADEA Agreement on November 12, 2013. 12 Dkt. # 1-3 Ex. 1. 13 On March 31, 2014, Plaintiff filed an EEOC complaint, alleging that Defendant 14 denied him pay and refused to return his work tools in retaliation for revoking his 15 settlement agreements. Dkt. # 1-3 at ¶ 5.10. On May 13, 2014, Plaintiff executed a new 16 settlement and release agreement with Defendant that solely covered his ADEA claims. 17 Dkt. # 1-3 Ex. 3. The EEOC then closed its investigation of the March 31, 2014 18 complaint, citing the May 13, 2014 settlement and release agreement. Dkt. # 1-3 Ex. 2. 19 Plaintiff filed another EEOC complaint on September 28, 2015, alleging that “a waiver 20 from Defendant became effective that violated the Older Workers Benefit Protection 21 Act (“OWBPA”): because “consideration was not paid as agreed,” the “mandatory 21 22 days to consider agreement tolled-out,” language allowing him a 7-day revocation 23 period was omitted, and “material changes were made to the agreement absent 24 [Plaintiff’s] acknowledgment.” Dkt. # 25. The EEOC closed its investigation of this 25 complaint on November 4, 2015. 26 27 Plaintiff filed his original Complaint in King County Superior Court on May 22, 2017, alleging that Defendant discriminated and retaliated against him in violation of ORDER - 2 1 the ADEA. Dkt. # 1. Defendant removed this case to the Western District of 2 Washington shortly after. Id. On December 5, 2017, Plaintiff attempted to file a First 3 Amended Complaint, which added a state law unlawful restraint of trade claim. 4 Dkt. # 20. The Court struck Plaintiff’s filing for failure to comply with the Federal 5 Rules of Civil Procedure. Dkt. # 22. On December 8, 2017, Defendant filed a Motion 6 for Judgment on the Pleadings. Dkt. # 23. Plaintiff then moved for leave to file a 7 Second Amended Complaint, again to add an unlawful restraint of trade claim. 8 Dkt. # 26. Defendant opposed Plaintiff’s motion, and Plaintiff voluntarily withdrew it 9 on January 10, 2018. Dkt. # 34. 10 On January 16, 2018, Plaintiff applied for a Supervisor Line Maintenance 11 position with Defendant. Dkt. # 38 Ex. 1. On January 26, 2018, Plaintiff filed another 12 EEOC complaint, alleging age discrimination because he had “heard nothing favorable 13 from Alaska Airlines with regard to the position.” Id. The EEOC closed its 14 investigation into Plaintiff’s complaint and issued a Notice of Right to Sue to Plaintiff 15 on February 8, 2018. Dkt. # 39. Plaintiff then filed a Motion to Amend one day later. 16 Dkt. # 38. The proposed Third Amended Complaint again adds an unlawful restraint of 17 trade claim and adds an additional ADEA retaliation claim. Dkt. # 38 Ex. 1. 18 II. LEGAL STANDARD 19 A. Motion to Amend 20 Amendment to pleadings is governed by Federal Rule of Civil Procedure 15(a). 21 Rule 15(a) “provides that a party’s right to amend as a matter of course terminates 21 22 days after service of a responsive pleading or 21 days after service of a motion under 23 Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(B). “In all other 24 cases, a party may amend its pleading only with the opposing party’s written consent or 25 the court’s leave. The court should freely give leave when justice so requires.” Fed. R. 26 Civ. P. 15(a)(2). “In exercising this discretion, a court must be guided by the 27 underlying purpose of Rule 15 to facilitate a decision on the merits, rather than on the ORDER - 3 1 pleadings or technicalities.” Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir. 2 1991); United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). Further, the policy of 3 favoring amendments to pleadings should be applied with “extreme liberality.” 4 DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). 5 Against this extremely liberal standard, the Court may deny leave to amend after 6 considering “the presence of any of four factors: bad faith, undue delay, prejudice to the 7 opposing party, and/or futility.” Owens v. Kaiser Foundation Health Plan, Inc., 8 244 F.3d 708, 712 (9th Cir. 2001). But “[n]ot all of the factors merit equal weight ... it 9 is the consideration of prejudice to the opposing party that carries the greatest weight.” 10 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “Absent 11 prejudice, or a strong showing of any of the remaining [ ] factors, there exists a 12 presumption under Rule 15(a) in favor of granting leave to amend.” Id. The party 13 opposing amendment bears the heavy burden of overcoming this presumption. 14 DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). 15 B. Motion for Judgment on the Pleadings 16 “Judgment on the pleadings is proper when the moving party clearly establishes 17 on the face of the pleadings that no material issue of fact remains to be resolved and that 18 it is entitled to judgment as a matter of law.” Hal Roach Studios, Inc. v. Richard Feiner 19 and Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). The standard applied on a Rule 12(c) 20 motion is essentially the same as that applied on a Rule 12(b)(6) motion for failure to state 21 a claim: “the allegations of the non-moving party must be accepted as true, while the 22 allegations of the moving party which have been denied are assumed to be false.” Id. 23 The Court is not required to accept as true legal conclusions or formulaic recitations of 24 the elements of a cause of action unsupported by alleged facts. Ashcroft v. Iqbal, 556 25 U.S. 662, 678 (2009). When considering a motion for judgment on the pleadings, a court 26 may consider material which is properly submitted as part of the complaint without 27 ORDER - 4 1 converting the motion into a motion for summary judgment. See Lee v. City of Los 2 Angeles, 250 F.3d 668, 688 (9th Cir. 2001). 3 III. DISCUSSION 4 A. Motion to Amend 5 As a preliminary matter, Plaintiff represents in his Reply that he no longer asserts 6 an unlawful restraint of trade claim. As such, the Court will assume that references related 7 to restraint of trade in Plaintiff’s proposed TAC were added by mistake and will not 8 address Defendant’s arguments regarding that claim here. 9 Defendant argues that Plaintiff should be denied leave to amend his Complaint 10 because the proposed amendments are futile. Plaintiff’s proposed Third Amended 11 Complaint (“TAC”) amends his age discrimination and retaliation claims to include the 12 allegation that Plaintiff “heard nothing favorable” after he applied for a Supervisor of 13 Line Maintenance position with Defendant, and adds an additional ADEA retaliation 14 claim based on Defendant’s response to his application and the same factual allegations 15 as his other age discrimination and retaliation claims. Dkt. # 38-1. 16 Defendant argues that the new facts alleged in the proposed TAC are insufficient 17 to state a prima facie case of age discrimination or retaliation. This type of argument is 18 not appropriately raised at this time. At this stage in the proceedings, assuming that 19 Plaintiff will not be able to state a claim based on his proposed amendments is the 20 equivalent of deciding a motion to dismiss. The legal standards for deciding whether 21 Plaintiff has failed to state a claim, and those governing amendment of pleadings are 22 entirely different. Just because a complaint fails to state a claim in its current state does 23 not automatically mean that further amendment would be futile. 24 Defendant also argues that that Plaintiff violated his settlement agreements when 25 he applied for the position with Defendant in January of 2018. Because these actions 26 constituted an alleged breach of these agreements, Defendant argues that any claims based 27 on these actions are futile. Defendant’s arguments are based on the assumption that these ORDER - 5 1 settlement agreements are enforceable. While Plaintiff alleges that the May 13, 2014 2 settlement and release agreement (“May 2014 Agreement”) is unenforceable, he does not 3 dispute that that the November 2013 Amendment to Confidential Settlement and Release 4 Agreement (“Amended Agreement”) is still in effect. Defendant contends that Plaintiff’s 5 actions violated the No Reemployment provision of the Amended Agreement, and the 6 “No Contact” provision of the May 2014 Agreement. With regards to the No Contact 7 provision of the May 2014 Agreement, accepting Defendant’s argument that Plaintiff’s 8 violation of this provision makes further amendment of the Complaint futile means 9 accepting its representation that this Agreement is enforceable. Again, at this stage in the 10 proceedings, it is inappropriate to make this determination, and the Court will not deny 11 Plaintiff leave to amend based on this type of assumption. 12 Because the parties do not dispute the enforceability of the Amended Agreement, 13 the Court will now consider the effect of the No Reemployment provision. The February 14 2013 settlement and release agreement (“February 2013 Agreement”) included a No 15 Reemployment provision which states: 16 17 18 19 20 21 22 23 24 25 26 [Plaintiff] understands and agrees that he waives any right that he may have to reinstatement and/or reemployment by [Defendant] or its affiliates and/or subsidiaries . . . and that [Plaintiff] has not and will not apply for or seek future employment with [Defendant], its affiliates and/or subsidiaries. [Plaintiff] agrees that [Defendant], including its affiliates and subsidiaries, has no obligation to consider [Plaintiff] for future employment or assignment. [Defendant], its affiliates, and/or subsidiaries may reject any future applications by [Plaintiff] without recourse. Dkt. # 41 Ex. 1. While the February 2013 Agreement was revoked by Plaintiff, Defendant contends that this No Reemployment provision was revived by the subsequent Amended Agreement, which states in part, that “the Parties reaffirm their agreement to abide by the terms of the [February 2013] Agreement,” that the Amended Agreement and the February 2013 Agreement “supersedes any previous agreements,” and that “[a]ll other non- 27 ORDER - 6 1 conflicting terms of the [February 2013 Agreement] remain in full force and effect and 2 apply to this [Amended Agreement].” Dkt. # 41 Ex. 1. 3 Plaintiff does not counter Defendant’s argument in his Response. However, 4 Plaintiff appears to argue in the proposed TAC that ADEA Agreement is independent and 5 “not affected by terms of other agreements.” Dkt. # 38 Ex. 1. Plaintiff argues that the 6 No Reemployment provision does not apply to his January 2018 job application because 7 this application is the basis of his ADEA claim, and ADEA claims are not affected or 8 barred by the No Reemployment provision because they are “covered” by the May 2014 9 Agreement. While Plaintiff’s actions may or may not be affected by an ADEA-related 10 settlement agreement, this does not preclude them from also being affected by the 11 Amended Agreement. 12 Defendant has no obligation to consider Plaintiff for future employment. Plaintiff admits 13 that he had “no intention to revoke the entire [November 2013 settlement agreement]” 14 when he revoked the ADEA portion. 15 enforceable, Plaintiff’s actions are a clear violation of the No Reemployment provision. The No Reemployment provision specifically states that Dkt. # 28. If the Amended Agreement is 16 However, Plaintiff also appears to argue that the No Reemployment provision is 17 in itself, retaliation or discrimination in violation of the ADEA. Plaintiff further argues 18 that the No Reemployment provision violates 29 CFR § 1625.22(b)(4), (c)(2), (i)(2), and 19 (i)(3). To the extent that Plaintiff is asserting that the provision is the basis for an ADEA 20 discrimination or retaliation claim, his Complaint is untimely. 21 discrimination must be filed in federal or state court within 90 days of the employee’s 22 receipt of a Notice of Dismissal from the EEOC. 29 C.F.R. § 1626.17(c)(3). The Notice 23 of Dismissal notifies the complainant that his or her “right to file a civil action against the 24 respondent . . . under the ADEA will expire 90 days after receipt of such notice.” Id. 25 Plaintiff signed the settlement and release agreements with the No Reemployment 26 provision on February 8, 2013, and November 5, 2013. Plaintiff filed one EEOC 27 complaint on March 31, 2014. Dkt. # 1-3 Ex. 1. The EEOC closed its investigation of ORDER - 7 A lawsuit for 1 that complaint on January 28, 2015. Dkt. # 1-3 Ex. 3. Plaintiff filed another EEOC 2 complaint on September 28, 2015. Dkt. # 25. The EEOC closed its investigation of the 3 second complaint on November 4, 2015. Plaintiff filed this lawsuit on May 22, 2017, or 4 over one year after the 90 day time limit expired. Assuming that Plaintiff properly 5 exhausted his administrative remedies, an ADEA discrimination or retaliation claim 6 based on the No Reemployment provision would be untimely. 7 To the extent that Plaintiff alleges that the No Reemployment provision violates 8 29 C.F.R. § 1625.22, Defendant argues that the regulation is inapplicable to the provision 9 because it only applies to waivers of ADEA claims. The Court makes no judgment as to 10 whether the No Reemployment provision is an ADEA wavier, however, the language of 11 the provision states that “Defendants . . . may reject any future applications by Plaintiff 12 without recourse.” To the extent that this phrase encompasses a waiver of Plaintiff’s 13 ADEA claims, it follows that the regulation would be applicable. Defendant also argues 14 that this type of provision is expressly permitted by 29 C.F.R. § 1625.22. Section 15 1625.22(c)(2) states that, “the ADEA does not bar, in a waiver that otherwise is consistent 16 with statutory requirements, the enforcement of agreements to perform future 17 employment-related actions such as the employee’s agreement to retire or otherwise 18 terminate employment at a future date.” Defendant contends that there is “no substantive 19 difference between enforcing an employee’s agreement to retire and enforcing an 20 employee’s agreement not to apply for a new position with the company.” This argument 21 is unpersuasive. If the cited regulation applies to the No Reemployment provision, and it 22 qualifies as an agreement to “perform future employment-related actions,” then it must 23 also be consistent with statutory requirements in order for that Section 1625.22(c)(2) to 24 apply. It is unclear at this time whether this is the case. Defendant has not shown that 25 amendment of the Complaint with regards to this claim would be futile. 26 To the extent that Plaintiff moves for leave to amend his complaint to allege any 27 ADEA discrimination or retaliation claims based on the February 2013 Agreement or the ORDER - 8 1 Amended Agreement, his Motion is DENIED. Such claims are untimely, and 2 amendment would be futile. To the extent that Plaintiff moves for leave to amend his 3 complaint to allege a violation of 29 C.F.R. § 1625.22, his Motion is GRANTED. 4 Dkt. # 38. 5 B. Motion for Judgment on the Pleadings 6 In deciding Plaintiff’s Motion to Amend, the Court necessarily considered 7 arguments brought in Defendant’s Motion for Judgment on the Pleadings. “Judgment on 8 the pleadings is proper when the moving party clearly establishes on the face of the 9 pleadings that no material issue of fact remains to be resolved and that it is entitled to 10 judgment as a matter of law.” Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 11 896 F.2d 1542, 1550 (9th Cir. 1990). While Defendant’s Motion does not address any 12 new claims that may be included in Plaintiff’s Amended Complaint, there is no material 13 issue of fact as to the timeliness of several of Plaintiff’s existing claims, such that 14 judgment on the pleadings is proper. 15 Plaintiff alleges that Defendant discriminated and retaliated against him in 16 violation of the ADEA by omitting language allowing him a 7-day revocation period from 17 the May 2014 Agreement, by including a tender-back provision in the May 2014 18 Agreement, and by failing to pay him a year’s worth of wages (from May 10, 2013 to 19 May 13, 2014, the day he signed the May 2014 Agreement) as well as a bonus for calendar 20 year 2013. Dkt. # 1-3 ¶¶ 6-6g. Plaintiff filed one EEOC complaint on March 31, 2014, 21 alleging that Defendant retaliated against him because he revoked the February 2013 22 Agreement and the Amended Agreement in violation of the ADEA. Dkt. # 1-3 Ex. 1. 23 The EEOC closed its investigation of that complaint on January 28, 2015. Dkt. # 1-3 24 Ex. 3. Plaintiff filed another EEOC complaint on September 28, 2015, alleging that “a 25 waiver from Defendant became effective that violated the Older Workers Benefit 26 Protection Act (“OWBPA”): because “consideration was not paid as agreed,” the 27 “mandatory 21 days to consider agreement tolled-out,” language allowing him a 7-day ORDER - 9 1 revocation period was omitted, and “material changes were made to the agreement absent 2 [Plaintiff’s] acknowledgment.” Dkt. # 25. 3 second complaint on November 4, 2015. The EEOC closed its investigation of the 4 As noted above, to the extent that Plaintiff’s Complaint alleges ADEA 5 discrimination or retaliation claims based on the February 2013 Agreement or the 6 Amended Agreement, such claims are untimely. Plaintiff’s remaining claims relate to the 7 May 2014 Agreement. Plaintiff filed his EEOC complaint regarding the May 2014 8 Agreement on September 28, 2015. The EEOC sent a Notice of Dismissal of this 9 complaint on November 4, 2015. Allowing three days for service by mail, the 90-day 10 limitation period for filing a lawsuit in state or federal court expired on February 6, 2016. 11 Plaintiff filed this lawsuit on May 22, 2017, or over a year after the deadline for filing a 12 civil suit. Therefore, Plaintiff’s ADEA claims related to the May 2014 Agreement are 13 also untimely. 14 Plaintiff argues that he is entitled to equitable tolling or equitable estoppel of the 15 limitations period for bringing this suit. Under federal law, equitable tolling is applied 16 “sparingly.” Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 17 L.Ed.2d 435 (1990). The equitable tolling doctrine focuses on whether there was 18 excusable delay by the plaintiff. Lukovsky v. City & Cty. of San Francisco, 535 F.3d 19 1044, 1051 (9th Cir. 2008). “Equitable estoppel, on the other hand, focuses primarily on 20 actions taken by the defendant to prevent a plaintiff from filing suit, sometimes referred 21 to as ‘fraudulent concealment.’” Id. 22 Plaintiff makes no argument that he diligently pursued his claims or that the delay 23 of over a year to file this lawsuit constitutes excusable delay. Plaintiff alleges no facts to 24 support an argument that equitable tolling applies to excuse Plaintiff’s failure to initiate 25 these proceedings within the 90 day limitations period. Plaintiff’s arguments for the 26 application of the equitable estoppel doctrine are similarly unpersuasive. Plaintiff makes 27 several allegations regarding the alleged unlawful circumstances under which he signed ORDER - 10 1 the May 2014 Agreement, however he makes no argument that Defendant obstructed, 2 impeded, or otherwise prevented him from filing a lawsuit against Defendant within the 3 90 day limitations period after the EEOC issued a Notice of Dismissal of his complaint, 4 or even in the year before he filed this lawsuit. Therefore, equitable tolling and equitable 5 estoppel do not serve to excuse Plaintiff’s failure to file his claim within the limitations 6 period. 7 IV. 8 9 10 CONCLUSION For the foregoing reasons, the Court GRANTS in part and DENIES in part Plaintiff’s Motion for Leave to Amend his Complaint. Dkt. # 38. Plaintiff shall file an amended complaint within twenty days of the date of this order. 11 To the extent that Plaintiff’s Complaint alleges ADEA discrimination or retaliation 12 claims based on the February 2013 Agreement, the Amended Agreement, and the May 13 2014 Agreement, Defendant’s Motion for Judgment on the Pleadings is GRANTED. 14 Dkt. # 23. 15 16 Dated this 31st day of May, 2018. 17 18 A 19 20 The Honorable Richard A. Jones United States District Judge 21 22 23 24 25 26 27 ORDER - 11
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