       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SHAW RAHMAN,                               )
                                           )      DIVISION ONE
                      Appellant,           )
                                           )      No. 68134-6-1                 r....:>
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THE BOEING COMPANY, KARl                   )                                                 ~-~t~-;

FOGELMAN, KRISTI PATTERSON,                )                                                -----
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KIMBERLY YEATON, KIMBERLY                  )                                    b          ~r.;·.:
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TRULSON, KEN NAETHE, ANDREW                )
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WRIGHT, RUSS JONES, and                    )                                   CJ1
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LARRY P. LITTLE,                           )                                               .....
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                      Respondents.         )      FILED: March 11, 2013
                                           )

       DWYER, J. -After being terminated from his job at The Boeing Company,

Shaw Rahman sued Boeing and eight of its employees, claiming that he was

wrongfully terminated 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, contrary to 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 for further proceedings.



       In February 2008, Boeing hired Rahman as a project manager. Within the

next few months, Rahman received two disciplinary notices: one for failing to

properly notify his supervisor about his absences from work, and one for

attempting to delegate tasks that were part of his job assignment. On July 31,
No. 68134-6-1/2


2008, Rahman was placed on suspension. Due to concerns about Rahman's

behavior during the meeting discussing his suspension, Boeing informed

Rahman he was required to undergo a medical evaluation prior to returning to

work. Boeing notified Rahman that he was required to make an appointment for

the evaluation by August 8, 2008, that he was not permitted to return to Boeing

before completing the evaluation, and that failure to make the appointment would

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 of the Washington Law Against

Discrimination (WLAD), chapter 49.60 RCW, and Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq. Specifically, Rahman claimed that he was

terminated based on his race, national origin, and religion, or in retaliation for

complaining about discriminatory treatment 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
appears to 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".
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No. 68134-6-1/3


       On August 12, 2011, Boeing removed the case to federal district court 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 by 42

U.S.C. § 2000e-5(e)(1 ). On September 27, 2011, the U.S. District Court for the

Western District of Washington dismissed Rahman's claims without prejudice, in

order to 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

under the WLAD. Boeing moved to dismiss the suit under CR 12(b)(6), arguing

that any claims were barred by the statute of limitations because they were filed

more than three years after Rahman's termination on August 8, 2008, and that

Rahman had otherwise failed to state a claim upon which relief could be granted.

The trial court granted Boeing's motion to dismiss. Rahman appeals.

                                            II

       Rahman argues that the trial court erred by dismissing his suit on the

ground that the 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 brought within three years under the general statute of limitations for

personal injury actions. RCW 4.16.080(2); Antonius v. King County, 153 Wn.2d

256, 261-62, 103 P.3d 729 (2004). For discrete discriminatory or retaliatory acts,

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No. 68134-6-1/4


such as termination, the limitation period begins to run from the date of the

alleged wrongful act. Antonius, 153 Wn.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)). If the limitation period has run, a cause of action arising from that

discrete act is barred. Antonius, 153 Wn.2d at 264.

        However, if a lawsuit is removed to federal court, any state law claims

over which the federal court assumes supplemental jurisdiction 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 [over which the federal court exercised

supplemental jurisdiction] ... 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 originally filed suit on July

6, 2011, within the three-year limitation period. In supplemental briefing, Boeing

concedes both that the running of the limitation period was tolled when Rahman's

claims were removed to federal court and that Rahman refiled his lawsuit in state

court within 30 days. See 28 U.S.C. § 1367(d). We accept Boeing's concession

and hold that Rahman's claims were not time barred. 2




    2
      In calling for supplemental briefing from Boeing on this issue, which was raised by
Rahman for the 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.
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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 law that we review de novo. Cutler v. Phillips Petroleum Co., 124

Wn.2d 749, 755, 881 P.2d 216 (1994). A CR 12(b)(6) motion questions only the

legal sufficiency of the allegations in a pleading, asking whether there is an

insuperable bar to relief. Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735,

742, 565 P.2d 1173 (1977). The purpose of CR 12(b)(6) is to weed out

complaints where, even if that which the plaintiff alleges is true, the law does not

provide a remedy. McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 101, 233

P .3d 861 (201 0). A motion to dismiss under CR 12(b)(6) should be granted only

if the plaintiff is not entitled to relief on a claim under any set of facts. Cutler, 124

Wn.2d at 755.

       The WLAD protects employees from discrimination on the basis of "race,

creed, color, [or] national origin" as well as retaliation by an employer for

engaging in a statutorily protected activity. RCW 49.60.180(2), .21 0. To

establish a prima facie case of termination on the basis of race or national origin,

an employee must demonstrate that he or she (1) belongs in a protected class;

(2) was discharged; (3) was doing satisfactory work; 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., 110 Wn.2d 355,

362-64, 753 P.2d 517 (1988)). To establish a prima facie case of retaliation, an

employee must show that (1) he or she engaged in a statutorily protected activity;

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No. 68134-6-1/6


(2) the employer took 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 of the Univ. of Wash., 129 Wn. App. 774, 797, 120 P.3d 579

(2005).

       Under the generous standard of CR 12(b)(6), a complaint survives a

motion to dismiss unless '"it appears beyond doubt that the plaintiff can prove no

set of facts, consistent with the complaint, which would entitle the plaintiff to

relief."' Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988) (internal

quotation marks omitted) (quoting Orwick v. City of Seattle, 103 Wn.2d 249, 254,

692 P.2d 793 (1984)). The "court may consider hypothetical facts not part of the

formal record." Hoffer, 110 Wn.2d at 420. Rahman alleges that he was

discriminated against on the basis of his race, religion, and national origin and

that he was terminated in retaliation for complaining about his treatment to higher

management. Because there are hypothetical sets of facts, consistent with his

complaint, that could support Rahman's claims, dismissal under CR 12(b)(6) was

not appropriate.

       Reversed.


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We concur:
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