Andrea Kane, Md; Brook Lang, Md; Christopher Rabin, Do v. MEDNAX SERVICES, INC., a foreign corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREA KANE, MD; BROOK LANG,
MD; CHRISTOPHER RABIN, DO,
Plaintiffs-Appellants,
v.
MEDNAX SERVICES, INC., a foreign
corporation; PEDIATRIX MEDICAL
GROUP OF WASHINGTON, INC. PS, a
Washington professional services
corporation,
Defendants,
and
PROVIDENCE HEALTH & SERVICES-
WASHINGTON, DBA Providence Sacred
Heart Medical Center,
Defendant-Appellee.
No. 22-36010
D.C. No. 2:22-cv-00159-TOR
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Argued and Submitted December 6, 2023
Seattle, Washington
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: McKEOWN, N.R. SMITH, and SANCHEZ, Circuit Judges.
Plaintiffs-Appellants Drs. Andrea Kane, Brook Lang, and Christopher Rabin
(“Plaintiffs”) appeal the district court’s dismissal of their claims against
Defendant-Appellee Providence Health & Services-Washington (“Providence”).
We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s
decision on a motion to dismiss de novo. See Cervantes v. Countrywide Home
Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). We reverse and remand.
Plaintiffs are three physicians who were employed by a physician group
named Mednax1 and who worked at a hospital owned by Providence. They allege
that their supervisor Dr. Ronald Ilg, a fellow Mednax employee, subjected them to
sexist comments and threatened their jobs and physical safety. The district court
held that Plaintiffs did not state cognizable employment and negligence claims
against Providence and dismissed those claims. The district court then denied
Plaintiffs leave to amend on futility grounds, stating: “Based on the detailed
allegations of the employer-employee relationship with Mednax and Pediatrix, the
Court finds amendment futile for claims against Providence.”
We will affirm a dismissal without leave to amend on futility grounds only if
“it is clear, upon de novo review, that the complaint could not be saved by any
1 Defendants Mednax Services, Inc. (“Mednax”) and Pediatrix Medical Group of
Washington, Inc., P.S. (“Pediatrix”) are not involved in this appeal.

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amendment.” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir.
2011) (citation omitted). We conclude that the district court abused its discretion
in denying leave to amend for two reasons.
First, the district court failed to articulate why Plaintiffs’ negligence claims,
which are not predicated on an employment relationship, warrant dismissal with
prejudice. See Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.
2003) (“A simple denial of leave to amend without any explanation by the district
court is subject to reversal.”). Second, Plaintiffs’ employment claims are not futile
simply because Mednax is Plaintiffs’ employer. Plaintiffs have also alleged that
Providence may be held liable as an employer under the Washington Law Against
Discrimination (“WLAD”), which includes “any person acting in the interest of an
employer.” See Wash. Rev. Code § 49.60.040(11).
The district court did not explain why the merits of Plaintiffs’ discrimination
and retaliation claims could not be saved by further amendment. The district court
stated that Plaintiffs’ complaint “plead[ed] no facts” showing that Providence itself
committed discriminatory acts, but that analysis failed to consider whether
Plaintiffs’ allegations stated, or could state, a cognizable hostile work environment
theory that Providence knew of Dr. Ilg’s sexual harassment but failed to take
adequate corrective action. See Glasgow v. Georgia-Pacific Corp., 693 P.2d 708,
711–12 (Wash. 1985). Even if the district court identified pleading deficiencies,

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our precedent generally requires that Plaintiffs be given an opportunity to cure
such deficiencies through amendment. See Corinthian Colls., 655 F.3d at 995.
We reverse the order dismissing Plaintiffs’ claims, and we remand to allow
Plaintiffs to amend their complaint and conduct limited discovery as appropriate.
See, e.g., In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186,
1190–91 & n.2 (9th Cir. 2015).
REVERSED AND REMANDED.

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