A proposed class of workers can't move forward with claims that a dialysis services company breached its contract by not paying a premium during the COVID-19 pandemic, because amended claims failed to show such a contract existed, the company argued in Washington federal court.
In a motion Thursday,
DaVita Inc. subsidiary Total Renal Care Inc. moved for judgment on the grounds that Joseph Hesketh III's second amended complaint still failed to state a breach of contract claim, because a company policy offering premium pay during emergencies contained disclaimers saying it wasn't binding.
"Plaintiff's third attempt at asserting his allegations flatly fails to resolve the deficiencies mapped by the court," the company said in the motion. "There are no facts that negate or are inconsistent with defendant's repeated and effective disclaimers or the discretionary language in the policy."
The company urged the judge to dismiss the suit instead of letting Hesketh refile, saying, "None of these defects are curable on amendment and plaintiff should not be afforded a fourth bite at the apple."
Under Total Renal Care's disaster relief policy, employees could receive premium pay while working through certain emergencies, according to the company's motion. The policy contained multiple disclaimers saying the policy didn't create contractual or legal obligations and was subject to change, the motion said.
The judge previously ruled that claims in an earlier version of the complaint failed to survive those disclaimers, and Hesketh again failed to show he could get around them in the latest version, the company argued. For example, the worker had not shown the company made comments departing from the disclaimers, the company argued.
Besides the disclaimers issue, premium pay also did not apply because COVID-19 had not triggered the disaster policy, a point Total Renal Care had communicated to employees in March 2020, the company argued.
"The pandemic, which has existed for more than a year now, is not the type of situation contemplated by the policy, nor has the policy been triggered or invoked due to the pandemic," the motion said. "None of TRC's clinics have closed as a result of COVID-19, and teammates have continued to work either in the clinics or remotely."
The policy especially did not apply to Hesketh, an information technology specialist who worked remotely even before the pandemic, the company argued.
"Plaintiff was not prevented from working," the company said in the motion. "He continued to perform his regular duties, work his regular hours and work in his usual (remote) location."
The company also urged the judge to toss additional claims of promissory estoppel, saying Hesketh failed to show he had relied on the policy, and breach of implied duty of good faith and fair dealing, saying the worker failed to establish that a contract existed.
An unjust enrichment claim also failed because Hesketh hadn't shown that the company benefited at his expense from paying regular wages during the pandemic, the company argued.
Hesketh, who has worked for the company for more than 13 years, filed the suit in Washington state court in October 2020, and the company removed it to federal court
the following month.
He alleged that Total Renal Care broke with contract terms by continuing to pay workers regular pay during the pandemic instead of a premium of 1.5 times their regular rate, as it should have under the disaster relief policy.
In April, the judge
granted a partial win to the company, saying the breach of contract claim failed because the disclaimers meant the policy wasn't a contract. The judge said Hesketh could refile, and the worker did so the next month.
On June 18, Hesketh
filed for class certification. He is seeking to represent a class of all nonexempt employees subject to the employee policies and who have worked at companies owned or controlled by DaVita since January 2020.
Counsel for the parties did not immediately respond to requests for comment.
A Total Renal Care spokesperson also did not immediately respond.
Hesketh is represented by Christina Latta Henry of Henry & Degraaff PS, by Craig Ray Hill and J. Craig Jones of Jones & Hill and by Scott C. Borison of Borison Firm LLC.
Total Renal Care is represented by Chelsea D. Petersen, Heather Shook and Margo Jasukaitis of
Perkins Coie LLP.
The case is Hesketh v. Total Renal Care Inc., case number
2:20-cv-01733, in
U.S. District Court for the Western District of Washington.
--Additional reporting by Irene Spezzamonte, Daniela Porat and Tim Ryan. Editing by Leah Bennett.
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