French v. Washington State Department of Health

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Wash.April 19, 2017

DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 1 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Honorable James L. Robart UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE NINA FRENCH, Plaintiff, v. WASHINGTON STATE DEPARTMENT OF HEALTH; WFSE/AFSCME, Defendants. NO. 2:15-cv-00859-JLR DEFENDANT WASHINGTON STATE DEPARTMENT OF HEALTH’S MOTION TO DISMISS SECOND AMENDED COMPLAINT NOTE ON MOTION CALENDAR: Friday, May 12, 2017 COMES NOW defendant Washington State Department of Health, by and through its counsel of record, and requests the relief set forth herein. I. REQUEST FOR RELIEF Pursuant to Fed. R. Civ. P. 12(b)(1) and (6), defendant Washington State Department of Health (“DOH”) requests dismissal of plaintiff’s second amended complaint, as alleged against it, for lack of subject matter jurisdiction and failure to state a claim for which relief can be granted.1 1 Plaintiff’s second amended complaint (Dkt. #40) actually contains two “complaints” - one against DOH, and the other against WFSE/AFSCME. For purposes of this motion DOH is considering only those allegations contained in the complaint against it. Further, plaintiff has apparently abandoned her claims against the FDA Center for Veterinary Medicine as she has not filed an amended complaint against it. Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 1 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 2 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 II. STATEMENT OF FACTS Plaintiff’s second amended complaint, (Dkt. #40), is a repackaging of the same allegations she has made in her two earlier complaints. Plaintiff has not addressed the deficiencies that prompted the Court to grant judgment on the pleadings and to dismiss her amended complaint without prejudice and with leave to file what is now plaintiff’s second amended complaint. (Dkt. #32). The facts, authorities, and analysis that supported Judgment on the Pleadings now support this Motion to Dismiss. In her second amended complaint (“Second Amended Complaint,”) plaintiff alleges this Court has federal question jurisdiction because she is making claims under “Title VII of the Civil Rights Act, the American’s [sic] with Disabilities Act, and Age and Sex Discrimination.” (Dkt. #40, p. 5, sec. 3.A). Yet, plaintiff asserts the only relief she seeks is under Washington law: “I simply wish the court to uphold the protections that the State of Washington has made for whistleblower protection.” (Dkt. #40, p. 6, sec. IV). Regardless, plaintiff is again alleging she was subjected to gender discrimination and whistleblower retaliation. (Dkt. #40, p. 8). Although plaintiff does not allege she filed an EEOC complaint prior to initiating suit in this second amended complaint, she does attach a copy of the Dismissal and Notice of Rights letter dated March 18, 2015. (Dkt. #40, p. 11). Plaintiff’s “Merits of Claim” is merely a pared down chronology of the same facts plaintiff has previously alleged. (Dkt. #40, pp. 8-10). Although plaintiff is claiming age discrimination, her second amended complaint does not allege her specific age or that she was over 40 at any time relevant to this case. Between December 2010 and January 2013, plaintiff worked for DOH under a grant from the Food Emergency Response Network. (Dkt. #40, p. 6). DOH advised plaintiff by letter of January 3, 2013 that she would be laid off from her “project position,” at the close of business on January 31, 2013, due to a lack of funds. (Dkt. #40, pp. 8 and 15). The Notice of Layoff went on to explain plaintiff was eligible to place her name on the “internal layoff list for the job class in which permanent project status was attained” because she Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 2 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 3 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 had remained in project status for two years. (Dkt. #40, p. 15). DOH specifically advised plaintiff she was being laid off in accordance with the terms of her Collective Bargaining Agreement (“CBA”), (Dkt. #40, p. 15), and plaintiff complains about purported violations of her CBA. (Dkt. #40, p. 8). Plaintiff alleges she returned to work with DOH on “March 16, 2014,” (Dkt. #40, p. 8); however, DOH submits this is a scrivener’s error as documents plaintiff previously filed with the Court establish she came back to work with DOH with effective dates of March 16, 2013 through February 15, 2014. (Dkt. #18-2, p. 144). Documents previously filed by plaintiff also establish DOH advised plaintiff, on January 13, 2014, that she needed to “wind up on the project” because there was “only a month left on the contract,” (Dkt. #18-2, p. 129); and DOH formally advised plaintiff her “nonpermanent appointment to the position of Chemist 2” would be terminated at the close of business on February 3, 2014, in a letter dated January 30, 2014. (Dkt. #18-2, p. 146). Plaintiff renews her claim of whistleblower retaliation based upon a September 8, 2013, letter she wrote anonymously to then Washington State Secretary of Health John Weisman (“Secretary Weisman”) and the Washington Executive Ethics Committee (“EEB”) about concerns she had received from a co-worker about the potential promotion of another co-worker if/when a supervisor retired. (Dkt. #40, p. 9). Regarding her disability claim, plaintiff re-alleges she began using anti-depressants during 2006 or 2007, (Dkt. #40, p. 9), years before plaintiff began her employment with the DOH. (Dkt. #40, p. 8). Plaintiff does not allege she ever notified DOH she suffered from depression or requested any accommodation from DOH. Moreover, her only evidence of disability discrimination are events that occurred on January 28, 2014, mere days before her scheduled layoff, during which plaintiff alleges her supervisor “proceeded to try to talk to [her] about getting help from the Employee Assistance Program.” (Dkt. #40, p. 9). Plaintiff also renews her allegations regarding co-workers’ having gone through her personal property, with some items missing. (Dkt. #40, pp. 8 and 10). Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 3 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 4 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 III. EVIDENCE RELIED UPON For purposes of this motion, DOH relies on plaintiff’s second amended complaint and, to the extent specifically identified herein, certain documents plaintiff previously filed with the Court. IV. ARGUMENT AND AUTHORITIES Defendant Washington State Department of Health submits the Court should enter an Order dismissing plaintiff’s second amended complaint, to the extent it alleges causes of action against DOH, because some of her claims fail for lack of subject matter jurisdiction, and the remainder of her claims fail to state a claim. A. Dismissal for Lack of Subject Matter Jurisdiction A motion to dismiss under Rule 12(b)(1) of the Federal Rule[s] of Civil Procedure addresses the court’s subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994). They possess only that power authorized by United States Constitution and statute, which is not to be expanded by judicial decree. Id. The burden of establishing the subject matter jurisdiction rests upon the party asserting jurisdiction. Id. Institute for Wildlife Protection v. Norton, 337 F. Supp. 2d 1223, 1226 (W.D. Wash. 2004). 1. Whistleblower Retaliation Claims Based on Federal Law The federal Whistleblower Protection Act (“WPA”) makes it a “prohibited personnel practice,” 5 U.S.C. § 2302(a)(1), to retaliate against an employee who reports evidence of gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific dangers to public health and safety, or violations of law. 5 U.S.C. § 2302(b)(8). In order to trigger the provisions of the WPA, an employee must be in, or an applicant for, a “covered position,” 5 U.S.C. § 2302(a)(2)(B), in an “agency,” 5 U.S.C. § 2302(a)(2)(C), and must make a “disclosure.” 5 U.S.C. § 2302(a)(2)(D). The WPA only applies to certain employees of the United States government. Further, its methods of redress involve appeals to the Merit Systems Protection Board, 5 U.S.C. § 7701, complaints to the Office of Special Counsel, 5 U.S.C. § 1212, and an individual right of action Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 4 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 5 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 before the Merit Service Protection Board. 5 U.S.C. § 1221. The WPA does not provide a private cause of action in the courts of the United States. Nothing in the WPA suggests Congress intended to permit employees to bypass this comprehensive system of administrative review. As the D.C. Circuit has observed, ‘[u]nder no circumstances does the WPA grant the District Court jurisdiction to entertain a whistleblower case of action brought directly before it in the first instance.’ Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002). Kerr v. Jewell, No. 14-36000, 2016 WL 4608149, *7 (9th Cir. Sept. 6, 2016). As an employee of DOH, plaintiff was not a federal employee. Even if she were, plaintiff cannot bring a WPA claim directly to this court. Accordingly, DOH submits plaintiff’s claim for whistleblower retaliation, to the extent alleged under the WPA, should be dismissed for want of subject matter jurisdiction.2 2. Claims for Monetary Damages under the ADA Although plaintiff is making a claim under the American’s [sic] with Disabilities Act, her factual allegations are limited to a cursory discussion of using prescription anti-depressants. Nevertheless, DOH will assume plaintiff pro se intended to allege such a claim. The Americans with Disabilities Act (“ADA”) prohibits discrimination in employment on the basis of disability. 42 U.S.C. § 12112. The ADA prohibits certain employers, including the States, from “discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” §§ 12112(a), 12111(2), (5), (7). Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 360-61, 121 S. Ct. 955, 960, 148 L. Ed. 2d 866 (2001). The State of Washington and its departments and agencies, however, enjoy the protections of the Eleventh Amendment. “The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court. 2 To the extent plaintiff may be asserting a claim under the Washington State Employee Whistleblower Protection Act, Wash. Rev. Code § 42.40, et seq., such a claim, alone, would not confer subject matter jurisdiction on the Court. 28 U.S.C. §1331. DOH will address state law whistleblower protection below. Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 5 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 6 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Garrett, 531 U.S. at 363, 121 S. Ct. at 962 (citing Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000)). In Garrett, the Supreme Court expressly considered “whether Congress acted within its constitutional authority by subjecting the States to suits in federal court for money damages under the ADA” when it sought to abrogate the States’ Eleventh Amendment immunity. Id., 531 U.S. at 364, 121 S. Ct. at 962. The Supreme Court held “that such suits are barred by the Eleventh Amendment.” Id., 531 U.S. at 360, 121 S. Ct. at 960. Eleventh Amendment immunity precludes any claim plaintiff may be making against DOH for monetary damages under the ADA. Any such claim should be dismissed for want of subject matter jurisdiction. 3. Claims for Monetary Damages for Age Discrimination Although plaintiff does not even allege her age in this second amended complaint, she asserts federal question jurisdiction exists because she is asserting a claim for age discrimination. Accordingly, DOH will assume plaintiff intended to plead a federal age discrimination claim. The Age Discrimination in Employment Act (“ADEA”) makes it unlawful to discriminate in employment on the basis of age. 29 U.S.C. § 623. The ADEA, like the ADA, sought to abrogate the States’ Eleventh Amendment immunity and subject them to suits for monetary damages by private individuals. The Supreme Court considered the validity of that abrogation in Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120 S. Ct. 631, 145 L. Ed.2d 522 (2000) and laid the foundation for the decision in Garrett, decided the following year. A review of the ADEA’s legislative record as a whole, then, reveals that Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age. Although that lack of support is not determinative of the §5 inquiry, [Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S.], at 646, 119 S. Ct. 2199; City of Boerne, 521 U.S., at 531-532, 117 S. Ct. 2157, Congress’ failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field. In light of the indiscriminate scope of the Act’s substantive requirements, and the lack of evidence of widespread and unconstitutional age discrimination by the States, we hold that the ADEA is not a valid exercise of Congress’ power under §5 of the Fourteenth Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 6 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 7 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Amendment. The ADEA’s purported abrogation of the States’ sovereign immunity is accordingly invalid. Kimel v. Florida Bd. of Regents, supra, 528 U.S. at 91, 120 S. Ct. at 649-50. The Eleventh Amendment provides DOH with immunity that precludes any claims for monetary damages under the ADEA and deprives the Court of subject matter jurisdiction. 4. Claim for Return of Personal Property DOH submits it is unclear whether plaintiff is alleging a claim related to personal property in this case. Given that plaintiff is pro se, DOH will assume she intended to plead a cause of action arising from the allegations that her personal property was gone through by co-workers and that some of her personal property is missing. To the extent plaintiff may be alleging state action amounting to unlawful search and seizure in violation of her Fourth Amendment rights, Title 42 U.S.C. § 1983 provides the vehicle for redress of such claims. Blessing v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 1359, 137 L. Ed.2d 569 (1997). DOH, as a state entity, submits its Eleventh Amendment immunity precludes any claims of unlawful search and seizure. By contrast, § 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability and which shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States. Quern v. Jordan, 440 U.S. 332, 345, 99 S. Ct. 1139, 1147, 59 L. Ed.2d 358 (1979). Additionally, DOH does not fall within the scope of “persons” who are amenable to suit under 42 U.S.C. §1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed.2d 45 (1989) (“We hold that neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.”) To the extent plaintiff’s second amended complaint is read to include a federal law claim related to personal property, it should be dismissed for lack of subject matter jurisdiction. Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 7 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 8 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 B. Dismissal for Failure to State a Claim Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests,” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid.; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (C.A.7 1994), a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004) (hereinafter Wright & Miller) (“[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”),[footnote omitted] on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S. Ct. 992, 152 L. Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 104 L. Ed.2d 338 (1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears “that a recovery is very remote and unlikely”). Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S. Ct. 1955, 1964-65, 167 L. Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-9, 129 S. Ct. 1937, 1949-50, 173 L. Ed.2d 868 (2009). 1. Claims under Title VII of the Civil Rights Act Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate in employment due to “race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1). Plaintiff’s second amended complaint makes no references to her race, color, religion or national origin, leaving only her sex as a possible basis for discrimination. Plaintiff does not allege her sex; however, DOH accepts that plaintiff is female. Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 8 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 9 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 a. Failure to Timely File a Charge with the EEOC In accordance with 42 U.S.C. § 2000e-5(e)(1), plaintiff had 300 days after an alleged discriminatory act to file a charge with the EEOC. Plaintiff’s second amended complaint fails to provide any indication of when she filed an EEOC charge against DOH. In the absence of such information, there is no basis for concluding plaintiff timely made an EEOC charge against DOH for any of the conduct she alleges. Dismissal is the appropriate remedy for failure to timely file a charge of discrimination. See, e.g., Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 120, 122 S. Ct. 20161, 2076, 153 L. Ed.2d 106 (2002)(“Simply put, § 2000e-5(e)(1) is a provision specifying when a charge is timely filed and only has the consequence of limiting liability because filing a timely charge is a prerequisite to having an actionable claim.”) b. Failure to Allege Employment Discrimination on the Basis of Sex When the well-pleaded factual allegations of plaintiff’s second amended complaint, along with reasonable inferences that may be drawn therefrom, fail to establish the “facial plausibility” “that the defendant is liable for the misconduct alleged;” her claims should not survive a motion to dismiss. Ashcroft, supra, 556 U.S. at 678, 129 S. Ct. at 1949. Plaintiff asserts federal question jurisdiction exists on the basis of sex discrimination; yet, she does not allege facts to support such a claim. The circumstances of plaintiff’s layoff in January 2013 belie any discrimination on the basis of sex. Plaintiff knew she was hired by DOH for a project that depended on a grant from the FDA. The stated reason for the layoff was the very condition plaintiff knew would end her employment with DOH in the first instance - her project was nearing completion and its grant funding was running out. (Dkt. #40, p. 15). Plaintiff’s sex is unrelated to the completion of the project and exhaustion of the grant funding. Plaintiff’s allegations of sex discrimination are further belied by her subsequent re-hiring by DOH. Plaintiff’s project position ended on January 31, 2013. (Dkt. #40, pp. 8 and 15). Less than six weeks later, on March 12, 2013, DOH offered, and plaintiff accepted, a non-permanent Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 9 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 10 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 position with DOH that was scheduled to last less than a year. (Dkt. #18-2, p. 144-45). As expected, plaintiff’s position ended less than two weeks short of the longest possible approved duration. (Dk. #18-2, p. 146). Her sex was not a factor in the termination of her appointment as the duration of the appointment was pre-determined, and agreed to, as a condition of employment. Plaintiff’s allegations regarding the events of September 2013 and January 28, 2014 similarly fail to allege discrimination based on sex. In September 2013 plaintiff allegedly submitted an anonymous letter. Plaintiff’s report of reported concerns by co-workers about the possible replacement for a potentially retiring of a lead worker does not support a claim of sex discrimination against plaintiff. The allegation regarding January 28, 2014 is of a single incident in which plaintiff’s own characterization makes no suggestion that her sex is a factor in the alleged discrimination. Plaintiff’s allegation is that she was harassed due to her disability when her supervisor suggested she seek help from the Employee Assistance Program (“EAP.”) Plaintiff’s own version of events, if accepted as true, fails to establish discrimination on the basis of her sex. While plaintiff may not need to establish a prima facie case of sex discrimination at the pleading stage, she must make factual allegations to suggest such discrimination. DOH submits there are no factual allegations in the second amended complaint to suggest discrimination in employment on the basis of sex. Plaintiff’s allegations of sexual harassment should be dismissed for failure to state a claim. 2. Claims under the ADA For purposes of this motion only, DOH will accept plaintiff’s allegation that she suffers from depression that is treated with medication prescribed by a medical care provider and will assume plaintiff’s depression constitutes a “disability” for purposes of the ADA. Plaintiff’s second amended complaint, nevertheless, fails to state a claim for disability discrimination. First, plaintiff claims to have begun treatment for depression in 2006 or 2007 and to have told her supervisor. (Dkt. #40, p. 9). Plaintiff did not work for DOH then, nor does she allege she Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 10 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 11 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ever told DOH she had a disability. Second, plaintiff does not allege her disability impacted her ability to perform the essential functions of her job, with or without accommodation. Third, plaintiff does not allege she needed a reasonable accommodation in order to perform the essential functions of her job with DOH. Moreover, plaintiff does not allege she requested any reasonable accommodation from DOH at any time such that DOH should have initiated the interactive accommodation process. A plaintiff must explicitly request an accommodation, unless the employer otherwise knew one was needed. Freadman [v. Metro Prop. & Cas. Ins. Co.], 484 F.3d [91 (1st Cir. 2007)] at 102. An accommodation request must be sufficiently direct and specific, and it must explain how the accommodation is linked to plaintiff's disability. Id.; see also Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 129 (1st Cir.2009). The obligation is on the employee to provide sufficient information to put the employer on notice of the need for accommodation. B. Lindemann & P. Grossman, Employment Discrimination Law, ch. 5.III, at 269 (4th ed.2007) (citing 29 C.F.R. § 1630.2(o) app. (2005)). This means not only notice of a condition, but of a “causal connection between the major life activity that is limited and the accommodation sought.” Id. ch. 13.VI.D.1, at 880 (quoting Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 687 (8th Cir. 2003)) (internal quotation mark omitted). Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89 (1st Cir. 2012). Fourth, plaintiff makes no allegations whatsoever that her layoff on January 3, 2013 was motivated by disability discrimination. The gist of plaintiff’s allegations is that her CBA had not been followed. Fifth, plaintiff allegation of disability discrimination is undercut by the fact she was hired by DOH twice. Both times, she was hired into positions that were full-time, but not permanent. Both times, plaintiff was terminated at the end of the position into which she had been hired. Finally, plaintiff’s allegations regarding her supervisor’s discussion of the EAP do not state a claim of disability discrimination. Plaintiff alleges her supervisor, on one specific day, and mere days before plaintiff’s position ended, expressed concerns about her ability to perform her work and “proceeded to try to talk to [her] about getting help from the Employee Assistance Program.” (Dkt. #40, p. 9). Significantly, plaintiff does not allege there were any material Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 11 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 12 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 changes to her employment based upon her supervisor’s concerns, nor does she allege there were any further discussions or referrals to the EAP. The ADA expressly authorizes employers to: 1) require medical examinations “if shown to be job-related and consistent with business necessity,” 42 U.S.C. § 12112(d)(4)(A); and 2) “may make inquiries into the ability of an employee to perform job-related functions,” 42 U.S.C. § 12112(d)(4)(B). As such, plaintiff’s supervisor’s one-time discussion of the EAP cannot constitute an adverse employment action when employers may make mandatory referrals. The court finds that a requirement to attend EAP counseling does not constitute a “tangible change in working conditions that produces a material employment disadvantage.” [Wilke v. Dept. of Health & Human Servs., 638 F.3d 944, 955 (8th Cir. 2011)]. Jenkins’s pay, benefits, work duties, work conditions and career prospects are unaffected by any requirement that she attend EAP counseling. EAP counseling was only a temporary requirement. See 45A Am.Jur.2d Job Discrimination § 237 (“[T]here is no adverse action based on temporary even if undesired rotations and assignments.”). Jenkins admits it was reasonable for Schornhorst and Martin to attend EAP counseling. The fact that she found the requirement that she also participate in the EAP to be unwelcome does not raise it to the level of an adverse employment action. Jenkins v. Med. Labs. of E. Iowa, Inc., 880 F. Supp. 2d 946, 961 (N.D. Iowa 2012), aff’d, 505 F. Appx. 610 (8th Cir. 2013). If DOH could have required plaintiff to attend EAP, then a one- time suggestion that she seek assistance from EAP, just days before she was being laid off, cannot constitute disability discrimination. 3. Claims of Age Discrimination To the extent plaintiff’s second amended complaint may be read to include discrimination on the basis of age, it is undermined be her own allegations. The only adverse employment decision plaintiff alleges is her layoff in January 2013; yet, she was re-hired, thereafter, for a position that effectively had a fixed duration. Moreover, as argued above, plaintiff has failed to allege any timely filing of an EEOC charge following the January 2013 layoff to the extent her allegations can be read to include age discrimination. To the extent plaintiff is claiming age discrimination in relation to her February 2014 termination, she has failed to plead timely filing of Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 12 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 13 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 an EEOC charge and failed to plead any facts that, if accepted as true, would support a claim of age discrimination. Plaintiff’s failure to make factual allegations regarding age discrimination is particularly glaring when the ADEA requires “but for” causation. Gross v. FBL Financial Services, Inc., 557, U.S. 167, 180, 129 S. Ct. 2343, 2352, 174 L. Ed.2d 119 (2009). 4. Claims under Washington Law It has long been held that federal courts having original jurisdiction over federal questions may exercise pendent and ancillary jurisdiction in order to adjudicate state law claims arising from the same core facts. City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 164-5, 118 S. Ct. 523, 529-30, 139 L. Ed.2d 525 (1997). The common law concepts of pendent and ancillary jurisdiction have been codified as “supplemental jurisdiction.” 28 U.S.C. § 1367. In cases where original jurisdiction is premised on federal questions, the Court has “supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United State Constitution. 28 U.S.C. § 1367(a). The Court does, however, have discretion not to exercise supplemental jurisdiction if it dismisses the claims that provided original jurisdiction. 28 U.S.C. § 1367(c)(3).3 a. Claims under the Washington Law Against Discrimination The Washington Law Against Discrimination (“WLAD”) declares the right of persons to be free from discrimination on the basis of age, sex and disability. Wash. Rev. Code §49.60.030(1). It makes it an unfair practice for employers to discriminate against an employee or applicant on the basis of their age, sex or disability. Wash. Rev. Code §49.60.180. Further, it also makes it an unfair practice for an employer to retaliate against a person who has opposed discrimination. Wash. Rev. Code §49.60.210. Even though almost all of the WLAD’s prohibitions predate Title VII’s, the ADA’s, and the ADEA’s, Washington courts still look to federal case law interpreting those statutes to guide our interpretation of the WLAD.[Footnote 3 If a court determines it completely lacks subject matter jurisdiction, then it must dismiss the complaint, in its entirety, and will not have discretion to exercise supplemental jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 1244-45, 163 L. Ed.2d 1097 (2006). Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 13 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 14 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 omitted.] Federal cases are not binding on this court, which is “free to adopt those theories and rationale which best further the purposes and mandates of our state statute.” Grimwood v. Univ. of Puget Sound, Inc., 110 Wash. 2d 355, 361- 62, 753 P.2d 517 (1988). Kumar v. Gate Gourmet Inc., 180 Wash. 2d 481, 491, 325 P.3d 193, 197-98 (2014). While the State of Washington has waived its sovereign immunity for damages sounding in tort “to the same extent as if it were a private person or corporation,” Wash. Rev. Code §4.92.090; necessary prerequisites to filing suit against the State for alleged tortious conduct are the presentment of an administrative tort claim, Wash. Rev. Code §4.92.100, and the passage of sixty calendar days after presentment of the administrative tort claim. Wash. Rev. Code §4.92.110. Under Washington law, discrimination actions are tort actions, Anderson v. Pantages Theatre Co., 114 Wash. 24, 30-31, 194 P. 813, 815-16 (1921), and the filing of a tort claim is a prerequisite to bringing suit. Blair v. Washington State University, 108 Wash. 2d 558, 575-77, 740 P.2d 1379, 1388-89 (1987) (“Nevertheless, we are persuaded Wash. Rev. Code §4.92 and the Law Against Discrimination do not conflict and this court should fulfill the purposes of both. We therefore affirm the trial court’s application of Wash. Rev. Code §4.92.110 to the plaintiffs’ discrimination claim.”). Plaintiff makes no allegations regarding having filed an administrative tort claim with the State or having waited sixty calendar days after presenting her administrative tort claim before filing suit. Where there is no evidence of compliance with the statutes allowing tort suits against the State, whether strict or substantial, dismissal is the appropriate remedy. Hyde v. University of Washington Med. Ctr., 186 Wash. App. 926, 928-29, 347 P.3d 918, 920 (2015). b. Claims regarding personal property To the extent plaintiff is making allegations against DOH related to her personal property, she has specified a range of dates that are no later than March 16, 2013. (Dkt. #40, p. 8). Plaintiff does not provide any additional facts regarding specific dates, locations, or suspected co-workers Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 14 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 15 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 who may have taken her calculator and a notebook. Regardless, plaintiff’s claims related to her personal property, even if true, should be dismissed. a) No cause of action under Washington Constitution: As with the Fourth Amendment of the U.S. Constitution, the Washington Constitution, Article 1, section 7, recognizes a person’s right to be free from unlawful search and seizure. Even if one assumes plaintiff has pleaded State action in violation of her state constitutional rights, her claim must be dismissed. While violations of rights guaranteed under the U.S. Constitution may be enforced under 42 U.S.C. §1983, there is no analogous statutory provision under Washington law. Moreover, courts in Washington have continuously refused to recognize a common law cause of action for enforcement of rights protected by the Washington Constitution. Janaszak v. State, 173 Wash. App. 703, 723-24, 297 P.3d 723, 734 (2013); Blinka v. Washington State Bar Ass’n, 109 Wash. App. 575, 591, 36 P.3d 1094, 1101 (2001); Reid v. Pierce Cnty, 136 Wash. 2d 195, 213-14, 961 P.2d 333, 342-43 (1998); Spurrell v. Bloch, 40 Wash. App. 854, 860-62, 701 P.2d 529, 534- 35 (1985); Systems Amusement, Inc. v. State, 7 Wash. App. 516, 517, 500 P.2d 1253, 1254 (1972). b) Failure to comply with RCW 4.92.110: Plaintiff’s allegation of deprivation of her personal property sounds in conversion, a tort. See, e.g., Davenport v. Washington Educ. Ass’n, 147 Wash. App. 704, 721-22, 197 P.3d 686, 695 (2008). As argued above, plaintiff was required to file an administrative tort claim with the State before she commenced this lawsuit. Plaintiff’s failure to file a tort claim for the alleged conversion requires dismissal of that claim. c) Barred by the statute of limitations: Under Washington law, the statute of limitations for a claim alleging a taking of personal property is three years. Wash. Rev. Code §4.16.070. Absent an applicable tolling provision, the statute of limitations on plaintiff’s personal property claim expired three years after the latest date alleged, i.e., March 12, 2016. Commencement of an action by filing or service normally tolls the statute of limitations, Wash. Rev. Code §4.16.180; however, no action may be commenced against the State without the Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 15 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 16 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 presentment of an administrative tort claim. Wash. Rev. Code §4.92.110. The dismissal of plaintiff’s claim regarding her personal property for failure to timely file a tort claim and improperly commencing suit against DOH means that any attempt by plaintiff to now file a tort claim is untimely and barred by the three year statute of limitations. c. Claims Regarding Collective Bargaining Agreement Plaintiff was covered by CBAs during her employment with DOH. Plaintiff has not alleged she grieved any alleged violations of her CBA; however, she has alleged DOH violated the CBA, (Dkt. #40, pp. 8-9), alleged her union failed to represent her, (Dkt. #40, p. 21), and added her union as a party defendant in this action. (Dkt. #40, pp. 19-37). To the extent plaintiff is alleging DOH violated her CBA, she is alleging breach of contract; and to the extent she is making allegations against WFSE, she is alleging breach of the duty of fair representation. This type of claim-breach of contract claim against an employer and breach of fair representation (DFR) against a union-is “inextricably interdependent” and forms a hybrid claim. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S. Ct. 2281, 76 L. Ed.2d 476 (1983). To prevail against either the company or the Union, . . . [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union . . . The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both. Id. at 165, 103 S. Ct. 2281 (quoting United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 66-67, 101 S. Ct. 1559, 67 L. Ed.2d 732 (1981)) (internal quotation marks omitted). Imperato v. Wenatchee Valley Coll., 160 Wash. App. 353, 358, 247 P.3d 816, 818 (2011). “Simply stated, [plaintiff]’s claim for breach of contract and breach of the duty of fair representation is an unfair labor practice claim.” Id., 160 Wash. App at 360, 247 P.3d at 819. In Imperato, as in this case, the plaintiff had been terminated and alleged his union breached the duty of fair representation. After concluding the plaintiff’s claims constituted an Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 16 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 17 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 unfair labor practice, the court went on to determine the applicable statute of limitations. Collective bargaining by public employees is governed by Wash. Rev. Code §41.56 (counties, etc.) and Wash. Rev. Code §41.80 (the State.) The Washington Supreme Court has recognized claims of unfair labor practices may be brought before the Public Employees Relation Committee (“PERC”) or a court. Imperato, supra, 160 Wash. App. at 363, 247 P.3d at 820 (citing Washington State Council of Cty. & City Employees, Council 2, AFSCME, AFL- CIO, Local 87 v. Hahn, 151 Wash. 2d 163, 167, 86 P.3d 774, 776 (2004)). In accordance with Wash. Rev. Code §41.46.160(1) and Wash. Rev. Code §41.80.120(1), a claim of unfair labor practices filed with PERC must be filed within six months of the occurrence; however, those statutes, are silent on the applicable statute of limitations for unfair labor practices claims filed in court. After examining federal law and law from other jurisdictions, the Imperato court concluded the Washington statute of limitations for unfair labor practices claims filed in court was also six months and affirmed summary judgment in favor of the employer and the union. Id., 160 Wash. App. at 364, 247 P.3d at 821. Plaintiff’s first filing in this case, (Dkt. #1), on June 1, 2015, was after the running of the six-month statute of limitations such that her claims involving the CBA should be dismissed. d. Whistleblower Retaliation Claim It is unclear what source of whistleblower protection plaintiff is claiming under Washington law. While there are various definitions related to what constitutes whistleblowing and to whom whistleblower complaints must be made, for purposes of this motion, DOH will assume plaintiff did qualify as a whistleblower regardless of the source of the claimed protection. If plaintiff is claiming whistleblower status regarding workplace discrimination, then her protection can be found in the WLAD. Wash. Rev. Code §49.60.210. As discussed above, however, claims under the WLAD are torts that require filing of a tort claim and dismissal in Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 17 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 18 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the absence of such a claim. If she is claiming whistleblower status under the State Employee Whistleblower Protection Act, RCW 42.40, et seq., then her cause of action again lies under the WLAD, “Any person who is a whistleblower . . . and has been subjected to workplace reprisal or retaliatory action is presumed to have established a cause of action for the remedies provided under chapter 49.60 RCW.” Wash. Rev. Code §42.40.050(1)(a). Failure to file a tort claim requires dismissal of this claim. Finally, to the extent plaintiff is claiming retaliatory discharge in violation of public policy, this, too, is a tort. Rose v. Anderson Hay & Grain Co., 184 Wash. 2d 268, 275-76, 358 P.3d 1139, 1142 (2015). Failure to file a tort claim before commencing this lawsuit requires dismissal of plaintiff’s whistleblower retaliation claims. V. CONCLUSION Before filing her second amended complaint, plaintiff had the benefit of both DOH’s arguments and authorities supporting dismissal of her first amended complaint and the Court’s Order outlining why plaintiff’s first amended complaint was being dismissed. Defendant Washington State Department of Health respectfully submits plaintiff has failed to address any of the deficiencies that were present in her first amended complaint. All of plaintiff’s claims against DOH, and her second amended complaint as alleged against DOH should be dismissed. The Court lacks subject matter jurisdiction over claims alleged against DOH under the WPA, claims for monetary damages under the ADA and ADEA, and claims for unlawful search and seizure under the 4th Amendment. Those claims should be dismissed. Plaintiff has failed to state claims for which the Court can grant relief under Title VII, the ADA, and the ADEA. Those claims should be dismissed. The Court has discretion to exercise supplemental jurisdiction over plaintiff’s state law claims. DOH respectfully submits the Court should decline to exercise that discretion. /// /// Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 18 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 19 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff has failed to state causes of action under the WLAD, for her personal property, for violations of her CBA, and for whistleblower retaliation. All should be dismissed. DATED this 19th day of April, 2017. ROBERT W. FERGUSON Attorney General s/Scott M. Barbara SCOTT M. BARBARA, WSBA #20885 Assistant Attorney General 800 Fifth Ave. Suite 2000 Seattle, WA 98104 Tel: (206) 389-2033 Fax: (206) 587-4229 E-mail: scottb2@atg.wa.gov Attorneys for Defendant WA State Dept. of Health Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 19 of 20 DEF WA STATE DEPT OF HEALTH’S MOT FOR JUDGMENT ON PLEADINGS (C15-00859-JLR) 20 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DECLARATION OF SERVICE I hereby declare that on this 19th day of April, 2017 I caused to be electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will electronically send notification of such filing to the following parties: Nina L. French 10627 61st Ave S Seattle WA 98178 snowflakeschance@gmail.com I declare under penalty of perjury, under the laws of the State of Washington, that the foregoing is true and correct. DATED this 19th of April, 2019, at Seattle, Washington. s/Scott M. Barbara SCOTT M. BARBARA, WSBA #20885 Assistant Attorney General 800 Fifth Ave. Suite 2000 Seattle, WA 98104 Tel: (206) 389-2033 Fax: (206) 587-4229 E-mail: scottb2@atg.wa.gov Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 20 of 20