Arthur v. Whitman County et al, No. 2:2012cv00365 - Document 35 (E.D. Wash. 2014)
Court Description: ORDER Granting 20 Motion to Dismiss Negligent Supervision Claim. Signed by Senior Judge Lonny R. Suko. (PL, Case Administrator)
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Arthur v. Whitman County et al Doc. 35 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 11 12 13 14 BRENDA ARTHUR, an individual, ) ) Plaintiff, ) ) ) vs. ) ) WHITMAN COUNTY, a public ) entity; JOE REYNOLDS, an ) individual, ) ) Defendants. ) ______________________________ ) No. CV-12-365-LRS ORDER GRANTING MOTION TO DISMISS NEGLIGENT SUPERVISION CLAIM 15 BEFORE THE COURT is Defendant Whitman County’s Motion To Dismiss 16 Plaintiff’s Negligent Supervision Claim For Failure To State A Claim. (ECF No. 20). 17 The motion is heard without oral argument. 18 19 I. BACKGROUND 20 This action was originally filed in Whitman County Superior Court and 21 removed here on May 25, 2012. (ECF No. 2). Defendant has been employed by the 22 Whitman County Assessor’s Office since 2000. (First Amended Complaint at 23 Paragraph 2.1). During her employment, she has been supervised by Defendant Joe 24 Reynolds (Id. at Paragraph 2.2), the elected Whitman County Assessor. Plaintiff 25 alleges that during her employment, she has been sexually harassed by Reynolds. (Id. 26 at Paragraphs 2.4-2.17). Plaintiff asserts causes of actions against Whitman County 27 and Reynolds under Title VII of the Civil Rights Act, 42 U.S.C. §2000e, et. seq., and 28 the Washington Law Against Discrimination (WLAD), RCW Chapter 49.60, for a ORDER GRANTING MOTION TO DISMISS - 1 Dockets.Justia.com 1 sexually hostile work environment and for retaliation. She also asserts common law 2 causes of action for outrage and negligent infliction of emotional distress. Finally, 3 Plaintiff asserts against Whitman County a cause of action for negligent supervision, 4 alleging that “Defendant Whitman County’s conduct in supervising Defendant 5 Reynolds at work and/or its failure to train him subjected Plaintiff to abusive and 6 hostile conduct which was negligent, unreasonable, and careless.” (First Amended 7 Complaint at Paragraph 5.2). 8 Whitman County moves to dismiss the negligent supervision claim on the basis 9 that “the County has no duty or ability to supervise Mr. Reynolds, as he is an elected 10 official.” 11 12 II. 12(b)(6) STANDARD 13 A Fed. R. Civ. P. 12(b)(6) dismissal is proper only where there is either a "lack 14 of a cognizable legal theory" or "the absence of sufficient facts alleged under a 15 cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th 16 Cir. 1990). In reviewing a 12(b)(6) motion, the court must accept as true all material 17 allegations in the complaint, as well as reasonable inferences to be drawn from such 18 allegations. Mendocino Environmental Center v. Mendocino County, 14 F.3d 457, 19 460 (9th Cir. 1994); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). 20 The complaint must be construed in the light most favorable to the plaintiff. Parks 21 School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The sole 22 issue raised by a 12(b)(6) motion is whether the facts pleaded, if established, would 23 support a claim for relief; therefore, no matter how improbable those facts alleged are, 24 they must be accepted as true for purposes of the motion. Neitzke v. Williams, 490 25 U.S. 319, 326-27, 109 S.Ct. 1827 (1989). 26 27 28 III. DISCUSSION The court concludes negligent supervision is not a cognizable legal theory ORDER GRANTING MOTION TO DISMISS - 2 1 upon which such a claim can be asserted against Whitman County for alleged sexual 2 harassment. Moreover, assertion of that claim is unnecessary to hold Whitman 3 County liable for any sexual harassment perpetrated by Reynolds. This is evident 4 from the decision of the Washington Court of Appeals in Broyles v. Thurston County, 5 147 Wn.App. 409, 195 P.3d 985 (2008). 6 In Broyles, the female plaintiffs were former deputy prosecuting attorneys who 7 a jury found had been subjected to sexually discriminatory acts, including sexual 8 remarks, by the elected county prosecuting attorney. On appeal, Thurston County 9 contended it could not be held liable for the acts of the prosecuting attorney because 10 it could not control him or how he ran his office, and that no agency relationship 11 existed between the county and the elected prosecuting attorney. The court of appeals 12 held the county was liable for the prosecuting attorney’s discriminatory employment 13 acts: 14 15 16 17 18 19 20 21 22 23 24 25 Especially in the context of employment discrimination, either the state or local government must be responsible for the actions of the officers and agents that exercise governmental powers and act on the government’s behalf. ... When the prosecuting attorney is exercising his delegated powers in employment matters, he is acting for the county, and thus the county is liable for the consequences of those employment decisions. . . . In the context of employment discrimination, either the state or local government must be responsible for the actions of the officers and agents that exercise governmental powers and act on the government’s behalf. The County cites numerous cases from other jurisdictions but none is persuasive here as none involves the WLAD and none holds that because a prosecuting attorney is an independently elected official, the County is shielded from liability for any of his conduct. 147 Wn.App. at pp. 429-30. 26 In a footnote, the court stated that because agency principles did not apply 27 under the circumstances presented, certain Washington cases (DeWater v. State, 130 28 Wn.2d 128, 921 P.2d 1059 (1996), and Francom v. Costco Wholesale Corp., 98 ORDER GRANTING MOTION TO DISMISS - 3 1 Wn.App. 845, 854, 991 P.2d 1182 (2000)), offered “little guidance.” Id. at 430, n. 2 6. 3 Whitman County says it is not challenging “imposition of vicarious liability for 4 Mr. Reynolds’ alleged acts.” According to Whitman County, “Broyles examined 5 Thurston County’s vicarious liability for the prosecutor’s [tortious] conduct, not 6 Thurston County’s direct liability for its supervision of said prosecutor.” It appears 7 to this court, however, that Broyles found Thurston County liable based on more than 8 vicarious liability. The term “vicarious liability” is not found in the section of the 9 Broyles decision discussing the “County’s Liability.” 147 Wn.App. at pp. 427-31. 10 As noted, the court of appeals indicated it did not rely on agency principles because 11 those principles did not apply. “Vicarious liability” is based on agency principles. 12 DeWater, 130 Wn.2d at 137; Francom, 98 Wn.App. at 854-56. In Broyles, Thurston 13 County’s liability was not derivative of the elected prosecuting attorney’s liability. 14 Liability was not imputed to the county. The county was not deemed liable because 15 it controlled and/or supervised the prosecuting attorney. It was liable because 16 “[w]hen the prosecuting attorney is exercising his delegated powers in employment 17 matters, he is acting for the county, and thus the county is liable for the 18 consequences of those employment decisions.” 147 Wn.App. at 430. (Emphasis 19 added). There was no employer/employee relationship between Thurston County 20 and the prosecuting attorney, and the prosecuting attorney was not a mere manager 21 or supervisor for the county.1 In Broyles, there was only an employer and it was 22 Thurston County and the prosecuting attorney as a single entity. 23 The same analysis applies to Whitman County and Reynolds, the county’s 24 25 1 It is noted, however, that a manager’s conduct will automatically impute 26 liability to an employer where the manager occupies a sufficiently high level 27 position so as to be considered the alter ego of the employer. Francom, 98 28 Wn.App. at 856. ORDER GRANTING MOTION TO DISMISS - 4 1 elected county assessor. All of Plaintiff’s WLAD and common law causes of action 2 are based on her allegedly being subjected to a sexually hostile work environment by 3 Reynolds. Per Broyles, if a jury finds by a preponderance of the evidence that 4 Reynolds subjected Plaintiff to a sexually hostile work environment, he is liable 5 under the WLAD and common law causes of action, and so is Whitman County. The 6 jury will not need to make separate determinations regarding the liability of Reynolds 7 and the liability of Whitman County under the WLAD and common law.2 8 Conversely, if a jury finds by a preponderance of the evidence that Reynolds did not 9 subject Plaintiff to a sexually hostile work environment, neither he or the county is 10 liable. In sum, based on Broyles, Whitman County and Reynolds County are 11 considered a single integrated employer entity for WLAD and common law liability 12 purposes.3 13 Reynolds as the elected county assessor, its potential liability does not depend on that To the extent Whitman County has any supervisory authority over 14 15 2 Whitman County seemingly recognizes this, stating it “is not arguing that 16 it is shielded from liability for any of Mr. Reynolds’ alleged conduct.” (ECF No. 17 30 at p. 3). 18 3 The court makes no determination, at this time, whether a similar result 19 pertains to the liability of Reynolds and Whitman County under Title VII (i.e., that 20 agency principles are irrelevant). Identification of an “employer” under Title VII 21 is a question of federal law. Burlington Industries v. Ellerth, 524 U.S. 742, 754- 22 55, 118 S.Ct. 2257 (1998). It is noted that the law under Title VII, consistent with 23 the law under the WLAD, liability is automatically imputed to an employer when a 24 harassing supervisor is “indisputably within that class of an employer 25 organization’s officials who may be treated as the organization’s proxy.” 26 Faragher v. City of Boca Raton, 524 U.S. 775, 789, 118 S.Ct. 2275 (1998). 27 28 ORDER GRANTING MOTION TO DISMISS - 5 1 supervision or lack thereof, nor on its own action or inaction.4 Accordingly, 2 Plaintiff’s common law negligent supervision claim is not only based on a non- 3 cognizable legal theory, it is based on an unnecessary one. 4 Defendant Whitman County’s Motion To Dismiss Plaintiff’s Negligent 5 Supervision For Failure To State A Claim (ECF No. 20) is GRANTED. Plaintiff’s 6 Negligent Supervision Claim is DISMISSED with prejudice. 7 8 9 IT IS SO ORDERED. The District Executive is directed to enter this order and forward copies to counsel. DATED this 1st 10 of April, 2014. s/Lonny R. Suko 11 LONNY R. SUKO Senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 4 In Broyles, the plaintiffs argued the county was liable because it knew 25 about the discrimination and did nothing to remedy it and failed to enforce its own 26 anti-harassment and discrimination policies. The court of appeals found that “[i]n 27 light of our holding that the County is liable as a matter of law, we need not 28 address this alternative claim.” 147 Wn.2d at 430-31. ORDER GRANTING MOTION TO DISMISS - 6
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