### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON SHAW RAHMAN, ) ) DIVISION ONE Appellant, ) ) No. 68134-6-1 r....:> ('")**~** {/)C) v. ) '"'-'**~~~** ) UNPUBLISHED OPINION :1: 

### __,--, ::1> Pl- 1**~CJ** THE BOEING COMPANY, KARl ) ::;::;:,**~-~t~-;** FOGELMAN, KRISTI PATTERSON, ...**~ ~**  ) 

# -----**3~!~~c~** KIMBERLYYEATON, KIMBERLY ) b**~r.;·.:** 3: ..............._ ... \....

.....- TRULSON, KEN NAETHE, ANDREW ) 

## --- ·-,..r- -J ...**~-I** G")U> WRIGHT, RUSS JONES, and ) -1.--- CJ1**,~:::_;** LARRY P. LITTLE, )

..... ) Respondents. ) FILED: March 11, 2013 

### ) DWYER, J. -After being terminated from hisjob atThe Boeing Company, Shaw Rahman sued Boeing and eightof its employees, claiming that he was wrongfullyterminated on the basis of race, national origin, and religion, or, in the alternative, that he was terminated as retaliation for complaining to management about his treatment. Because, contraryto the superior court's ruling, Rahman pleads a claim upon which relief could be granted, we reverse the trial court's dismissal under CR 12(b)(6) and remand forfurther proceedings.

In February 2008, Boeing hired Rahman as a project manager. Within the nextfew months, Rahman received two disciplinary notices: oneforfailing to properly notify his supervisor about his absences from work, and one for attempting to delegatetasks thatwere part ofhisjob assignment. On July 31,

### No. 68134-6-1/2 2008, Rahman was placed on suspension. Due to concerns about Rahman's behaviorduring the meeting discussing his suspension, Boeing informed Rahman he was required to undergo a medical evaluation priorto returning to work. Boeing notified Rahman that he was required to make an appointmentfor the evaluation byAugust 8, 2008, that he was not permitted to return to Boeing before completing the evaluation, and thatfailure to make the appointmentwould result in termination. Rahman did not make the appointment and was terminated
on August 8, 2008. On July 6, 2011, Rahman sued Boeing in King County Superior Court, Cause No. 11-2-23321-9 SEA, alleging violations ofthe Washington LawAgainst Discrimination (WLAD), chapter49.60 RCW, and Title VII ofthe Civil Rights Act of 1964, 42 U.S.C. 

### § 2000e etseq. Specifically, Rahman claimed that he was terminated based on his race, national origin, and religion, or in retaliation for complaining aboutdiscriminatorytreatment by supervisors. Rahman identified
one instance in which, during his suspension meeting, a supervisor "started addressing me by my Muslim name 'Mohammad, Mohammad' to [sic] in a preemptively and commanding manner [sic], to influence the audience that I am a 'Mohammad'-influencing and reminding [sic] with post 9-11 emotions." 1

1 Rahman acknowledges that his legal name is actually "Mohammad," although he appearsto favor being called "Shaw." While employed at Boeing, the name on all of Rahman's outgoing emails was "Rahman, Mohammad" and Rahman's email signature included his name as "Shaw (Mohammad) Rahman." Rahman signed his pleadings to this court as "Mohammad Rahman" or "Md. Rahman". 

### -2-No. 68134-6-1/3
On August 12, 2011, Boeing removed the case to federal districtcourt and moved to dismiss Rahman's claims. Rahman conceded that his Title VII claim
was barred because he had failed to file a claim with the Equal Employment Opportunity Commission within 300 days of his termination as required by42 U.S.C. 

### § 2000e-5(e)(1). On September27, 2011, the U.S. District Courtforthe Western District ofWashington dismissed Rahman's claims without prejudice, in orderto allow Rahman to refile the WLAD claim in state court. On October 13, 2011, Rahman again filed suit against Boeing in King County Superior Court, Cause No. 11-2-35677-9 SEA, claiming discrimination underthe WLAD. Boeing moved to dismissthe suit under CR 12(b)(6), arguing that any claims were barred bythe statute oflimitations because they were filed
morethan three years after Rahman's termination on August 8, 2008, and that Rahman had otherwisefailed to state a claim upon which relief could be granted. Thetrial court granted Boeing's motion to dismiss. Rahman appeals. II Rahman argues thatthe trial court erred by dismissing his suit on the ground thatthe statute of limitations had expired. We agree with Rahman that the statute of limitations did not bar his suit. WLAD does not contain its own limitation period; discrimination claims must be broughtwithin three years underthe general statute of limitationsfor personal injury actions. RCW4.16.080(2); Antonius v. King County, 153Wn.2d 256, 261-62, 103 P.3d 729 (2004). Fordiscrete discriminatory or retaliatory acts, -3-No. 68134-6-1/4
such as termination, the limitation period begins to run from the date ofthe alleged wrongful act. Antonius, 153Wn.2d at 264 (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108-13, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002)). Ifthe limitation period has run, a cause ofaction arising from that discrete act is barred. Antonius, 153Wn.2d at 264. However, ifa lawsuit is removed to federal court, any state law claims
overwhich the federal court assumes supplementaljurisdiction are tolled until the federal claims are resolved. See 28 U.S.C. 

### § 1367(d) ("The period of limitations for any [pendant state law] claim [overwhich the federal court exercised supplementaljurisdiction]

... shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period."). Rahman was terminated on August 8, 2008. He originallyfiled suit on July 6, 2011, within the three-year limitation period. In supplemental briefing, Boeing concedes both that the running ofthe limitation period was tolled when Rahman's claims were removed to federal court and that Rahman refiled his lawsuit in state courtwithin 30 days. See 28 U.S.C. 

### § 1367(d). We accept Boeing's concession and hold that Rahman's claims were nottime barred. 2

2 In calling for supplemental briefing from Boeing on this issue, which was raised by Rahman forthe first time in his reply brief, we specified that no further briefing would be accepted from Rahman. Nevertheless, Rahman filed a supplemental brief. Accordingly, Rahman's supplemental brief dated February 19, 2013 has been stricken and was not considered by this court. 

### -4-No. 68134-6-1/5


### Ill A trial court's ruling on a motion to dismiss under CR 12(b)(6) is a question of lawthatwe review de novo. Cutlerv. Phillips Petroleum Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994). A CR 12(b)(6) motion questions onlythe legal sufficiency ofthe allegations in a pleading, asking whetherthere is an insuperable barto relief. Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 742, 565 P.2d 1173 (1977). The purpose ofCR 12(b)(6) is toweed out complaints where, even ifthat which the plaintiffalleges is true, the law does not provide a remedy. McCurryv. Chevy Chase Bank, FSB, 169Wn.2d 96, 101, 233 P.3d 861 (2010). A motion to dismiss under CR 12(b)(6) should be granted only ifthe plaintiff is not entitled to relief on a claim underany set offacts. Cutler, 124 Wn.2d at755. TheWLAD protects employees from discrimination on the basis of "race, creed, color, [or] national origin" as well as retaliation by an employerfor engaging in a statutorily protected activity. RCW49.60.180(2), .210. To establish a prima facie case oftermination on the basis of race or national origin,
an employee must demonstratethat he orshe (1) belongs in a protected class; (2) was discharged; (3) was doing satisfactorywork; and (4) was replaced by
someone not in the protected class. Chen v. State, 86 Wn. App. 183, 189, 937 P.2d 612 (1997) (citing Grimwood v. Univ. of Puget Sound. Inc., 110Wn.2d 355, 362-64, 753 P.2d 517 (1988)). To establish a prima facie case of retaliation, an employee must showthat (1) he or she engaged in a statutorily protected activity; 

### -5-No. 68134-6-1/6 (2) the employertook adverse employment action; and (3) there was a causal link between the employee's activity and the employer's adverse action. Estevez
v. Faculty Club ofthe Univ. ofWash., 129Wn. App. 774, 797, 120 P.3d 579 (2005).Underthe generous standard ofCR 12(b)(6), a complaint survives a motion to dismiss unless '"it appears beyond doubtthatthe plaintiffcan prove no set offacts, consistentwith the complaint, which would entitle the plaintiffto relief."' Hofferv. State, 110Wn.2d 415, 420, 755 P.2d 781 (1988) (internal quotation marks omitted) (quoting Orwick v. City ofSeattle, 103Wn.2d 249, 254, 692 P.2d 793 (1984)). The "court may consider hypothetical facts not part ofthe formal record." Hoffer, 110Wn.2d at420. Rahman alleges that hewas discriminated against on the basis ofhis race, religion, and national origin and that he was terminated in retaliation for complaining about his treatmentto higher management. Because there are hypothetical sets offacts, consistentwith his complaint, that could support Rahman's claims, dismissal under CR 12(b)(6) was not appropriate. Reversed.

# ~)a. {I We concur:

# ~e.J 

# r CmlJ.

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