Blackman v. Omak School District et al, No. 2:2018cv00338 - Document 15 (E.D. Wash. 2019)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSONS MOTION TO DISMISS. Defendants Motion to Dismiss ECF No. 11 is GRANTED in part and DENIED in part. Plaintiff is granted leave to amend her Complaint regarding her failure to accommodate claim. Plaintiff shall file an Amended Complaint within 14 days of this Order. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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Blackman v. Omak School District et al Doc. 15 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 CHRIS NEESE BLACKMAN, NO. 2:18-CV-0338-TOR Plaintiff, 8 9 10 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS v. OMAK SCHOOL DISTRICT, and KENNETH ERIK SWANSON, 11 12 13 Defendants. BEFORE THE COURT is Defendant Erik Swanson’s Motion to Dismiss 14 Under Rule 12(b)(6) (ECF No. 12). This matter was submitted without oral 15 argument. The Court has reviewed the record and files herein, and is fully 16 informed. For the reasons discussed below, Defendant’s Motion to Dismiss (ECF 17 No. 12) is GRANTED in part and DENIED in part. 18 19 20 BACKGROUND On October 29, 2018, Plaintiff Chris Neese Blackman filed this Complaint against Defendants Omak School District (“District”) and Dr. Kenneth Erik ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 1 Dockets.Justia.com 1 Swanson (“Defendant Swanson”). ECF No. 1. Plaintiff alleges she was 2 wrongfully terminated in violation of state and federal law. Id. at ¶ 25. As 3 compensation for her injuries, Plaintiff seeks economic and non-economic 4 damages, as well as exemplary damages, punitive damages and general damages 5 relating to emotional distress and mental anguish. Id. at 24. 6 In the instant motion, Defendant Swanson moves to dismiss several of 7 Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(6). ECF No. 12. 8 Plaintiff filed a response to Defendant Swanson’s motion to dismiss. ECF No. 13. 9 FACTS 10 The following facts are drawn from Plaintiff’s Complaint and are accepted 11 as true for purposes of the instant motion only. Bell Atl. Corp. v. Twombly, 550 12 U.S. 544, 556 (2007). On April 27, 2016, Plaintiff entered into a certificated 13 employee contract with the District. ECF No. 1 at 3, ¶ 13. The District hired 14 Plaintiff for the position of Principal of Omak Middle School, commencing July 1, 15 2016. Id. This action revolves around events that occurred during the 2017-2018 16 school year, which ultimately resulted in Plaintiff being terminated from her 17 position as Principal of Omak Middle School on November 30, 2017. Id. at ¶ 25. 18 On or about October 26, 2017, Plaintiff informed Defendant Swanson that 19 the District was illegally utilizing its ASB funds. Id. at ¶ 19. Upon hearing this 20 information, Defendant Swanson allegedly responded, “Oh shit. That’s going to be ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 2 1 a mess.” Id. Then, in early November 2017, an administrative team meeting was 2 held with Plaintiff, Defendant Swanson, and several other district leaders. Id. at ¶ 3 20. At the meeting, Plaintiff led a discussion and informed everyone at the 4 meeting that the District had failed to pay certain classified staff overtime wages 5 and that many classified staff were working in excess of forty hours per week 6 without overtime compensation. Id. at ¶ 21. Defendant Swanson allegedly 7 responded that the District could not afford to pay the classified staff overtime. Id. 8 at ¶ 22. Plaintiff objected to Defendant Swanson’s position, again reiterated that 9 the District was violating the wage law, and told Defendant Swanson that she 10 could not stand by while the District did so. Id. at ¶ 23. Additionally, Plaintiff and 11 other building leaders were advised by the District and Defendant Swanson of their 12 intent to keep ASB auditors away from the building and the District Office. Id. at 13 ¶ 24. Plaintiff also objected to this scheme. Id. 14 On November 30, 2017, the District and Defendant Swanson terminated 15 Plaintiff allegedly without cause from her position as Principal of Omak Middle 16 School. Id. at ¶¶ 25-26. Plaintiff asserts that her performance at the time of her 17 termination was satisfactory, and she was well respected by her peers, teachers, 18 staff and the students at Omak Middle School. Id. at ¶¶ 14-15. However, prior to 19 her termination, Plaintiff disclosed to the District and Defendant Swanson that she 20 was experiencing mental health problems relating to her job as principal and was ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 3 1 under a doctor’s care. Id. at ¶ 25. According to Plaintiff, armed with knowledge 2 of her disability and whistleblowing conduct, the District and Defendant Swanson 3 proceeded to terminate her from her position as Principal of Omak Middle School. 4 Id. at ¶ 26. 5 Following Plaintiff’s termination, Defendant Swanson announced to District 6 employees, students, parents and the community “at a public (staff) meeting” that 7 Plaintiff had resigned due to medical reasons. Id. at ¶ 27. Shortly thereafter, the 8 District and Defendant Swanson informed the Omak Chronicle and the Wenatchee 9 World Newspaper about Plaintiff’s alleged resignation. Id. at ¶ 28. The 10 Defendants also issued additional notifications to District employees and the 11 school community that Plaintiff had resigned for medical reasons. Id. Plaintiff 12 maintains that she did not voluntarily resign, nor did she authorize the District or 13 Defendant Swanson to disclose health related information about Plaintiff to 14 anyone. Id. at ¶ 29. 15 On or about April 9, 2018, Plaintiff applied and interviewed for an 16 elementary school principal position with the Pendleton School District. Id. at ¶ 17 30. Plaintiff alleges that Omak School District staff disclosed prejudicial 18 information about Plaintiff regarding her employment with the District, which 19 resulted in Plaintiff not getting the job. Id. at ¶ 31. Plaintiff claims she was ranked 20 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 4 1 first out of the three candidates but was not selected for the position as a result of 2 the District’s negative portrayal of her employment. Id. at ¶ 32. 3 On March 10, 2018, the District sent a letter to Plaintiff in which it offered 4 Plaintiff a lower paying job. Id. at ¶ 33. Plaintiff maintains that the job offer was a 5 sham, as Defendants knew Plaintiff had moved out of the Omak area and made the 6 offer only after learning that Plaintiff had retained counsel and would be making 7 claims against the District. Id. at ¶¶ 33-34. 8 9 DISCUSSION I. Motion to Dismiss 10 Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain 11 only “a short and plain statement of relief showing that the pleader is entitled to 12 relief.” Fed. R. Civ. P. 8(a)(2). Federal Rule of Civil Procedure 12(b)(6) provides 13 that a defendant may move to dismiss the complaint for “failure to state a claim 14 upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When evaluating a 15 complaint under Rule 12(b)(6), courts must “accept the allegations in the 16 complaint as true, and draw all reasonable factual inferences in favor of the 17 plaintiff.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). And, notwithstanding 18 Rule 8(a)(2), the Supreme Court has specified that pleadings which merely offer 19 “labels and conclusions,” “a formulaic recitation of the elements of a cause of 20 action,” or “naked assertions devoid of further factual enhancements” are not ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 5 1 sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 2 Twombly, 550 U.S. 544, 555-57 (2007)). Thus, while “detailed factual allegations” 3 are not required, “to survive a motion to dismiss, a complaint must contain 4 sufficient factual matter, accepted as true, to state a claim to relief that is plausible 5 on its face.” Id. (quoting Twombly, 550 U.S. at 570). 6 In her Complaint, Plaintiff asserts the following eleven claims against the 7 District and Defendant Swanson: (1) Wrongful Discharge in Violation of Public 8 Policy; (2) Washington RCW 49.46.100 and FLSA Retaliation; (3) Wrongful 9 Discharge Based Upon Breach of Promise; (4) Violation Procedural Due Process 10 Section 1983; (5) Violation of First Amendment Rights; (6) Breach of Contract; 11 (7) Disability Discrimination under RCW 49.60 et seq.; and the intentional torts of 12 (8) Invasion of Privacy, (9) False Light, (10) Defamation, and (11) Blacklisting. 13 ECF No. 1 at 7-24. 14 In the pending motion to dismiss, Defendant Swanson moves the Court to 15 dismiss all of Plaintiff’s claims apart from her procedural due process claim. ECF 16 No. 12 at 1. In her response to Defendant Swanson’s motion, Plaintiff concedes 17 that five of the eleven claims—Cause of Action No. 6 (Breach of Contract) and 18 Cause of Action Nos. 8-11 (Intentional Torts of Invasion of Privacy, False Light, 19 Defamation, and Blacklisting)—are not lodged against Defendant Swanson. ECF 20 No. 13 at 17 (“As a point of clarification, Ms. Blackman is only asserting her ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 6 1 breach of contract, false light, defamation, blacklisting, and invasion of privacy 2 claims against Omak School District. She is not asserting those claims against 3 Defendant Swanson.”). Accordingly, only five of the eleven claims asserted in 4 Plaintiff’s Complaint are currently at issue in this motion. The Court discusses 5 each claim in turn below. 6 1. Wrongful Discharge in Violation of Public Policy 7 First, regarding Plaintiff’s wrongful discharge in violation of public policy 8 claim, Defendant Swanson moves the Court to dismiss this claim because the tort 9 can only be asserted against an employer, not an employee of the employer like 10 Defendant Swanson. ECF No. 12 at 3. In response, Plaintiff observes that 11 Defendant Swanson fails to cite a single Washington case or statute to support this 12 argument, instead relying exclusively on federal case law. ECF No. 13 at 4. 13 Plaintiff asserts that her wrongful discharge claim is based on Washington tort law, 14 which permits individual liability when an employee claims to have been 15 discharged in violation of established public policy. 16 Wrongful discharge in violation of public policy is an intentional tort and an 17 exception to the general principle that absent a definite contract, employees are 18 terminable at-will. Havens v. C&D Plastics, Inc., 124 Wash.2d 158, 177 (1994). 19 To establish a claim of wrongful discharge on public policy grounds, the 20 complaining employee must satisfy four elements: “(1) the existence of a ‘clear ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 7 1 public policy’ (clarity element), (2) whether ‘discouraging the conduct in which 2 [the employee] engaged would jeopardize the public policy’ (jeopardy element), 3 (3) whether the ‘public-policy-linked conduct caused the dismissal’ (causation 4 element), and (4) whether the employer is ‘able to offer an overriding justification 5 for the dismissal’ (absence of justification element).” Rose v. Anderson Hay and 6 Grain Co., 184 Wash.2d 268, 277 (2015) (quoting Gardner v. Loomis Armored, 7 Inc., 128 Wash.2d 931, 941 (1996)). The Washington Supreme Court has 8 recognized four scenarios that will potentially expose an employer to liability: “(1) 9 when employees are fired for refusing to commit an illegal act, (2) when 10 employees are fired for performing a public duty or obligation, such as serving jury 11 duty, (3) when employees are fired for exercising a legal right or privilege, such as 12 filing workers’ compensation claims, and (4) when employees are fired in 13 retaliation for reporting employer misconduct, i.e., whistle blowing.” Id. at 287. 14 In her Complaint, Plaintiff asserts that she was fired in retaliation for 15 engaging in protected activity as a whistleblower—i.e., reporting the misuse of 16 ASB funds, objecting to keeping ASB auditors away from school buildings and the 17 District Office, and objecting to the District and Defendant Swanson’s refusal to 18 pay certain classified staff overtime wages. ECF No. 1 at ¶ 46. There is no dispute 19 between the parties that these facts fall directly within the realm of wrongful 20 discharge in violation of public policy under the fourth scenario described above. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 8 1 The only disputed issue is whether Washington law permits Plaintiff to pursue this 2 wrongful discharge claim against individual supervisors, such as Defendant 3 Swanson, the Superintendent of the Omak School District. 4 The parties have not identified a single case where the Washington Supreme 5 Court squarely addressed whether a claim for wrongful discharge against public 6 policy can be brought against an individual supervisor. Based on the Court’s 7 review of relevant Washington precedent, it appears that the Washington Supreme 8 Court has not yet resolved whether supervisors can be held personally liable for 9 this tort. The Court can, however, predict how the Washington Supreme Court 10 would rule if presented with the issue. In Washington, the wrongful discharge 11 against public policy tort was first recognized to prevent employers from utilizing 12 the employee at-will doctrine to subvert public policy. Thompson v. St. Regis 13 Paper Co., 102 Wash.2d 219, 231 (1984). In adopting the doctrine, the 14 Washington Supreme Court declared that it was recognizing “a cause of action in 15 tort for wrongful discharge if the discharge of the employee contravenes a clear 16 mandate of public policy.” Id. at 232. Thus, the primary purpose underlying the 17 tort is to prevent the frustration of “a clear manifestation of public policy.” Id. at 18 231. The Washington Supreme Court has also reiterated that the doctrine is “a 19 means of encouraging both employers and employees to follow the law.” Rose, 20 184 Wash.2d at 275. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 9 1 The Court concludes that the purpose of the wrongful discharge tort— 2 namely, the deterrence of discharge in violation of public policy—is best served if 3 individual employees, particularly those in a position of power, are held personally 4 liable for conduct that violates public policy and effectuates another employee’s 5 termination. In a wrongful discharge case, the tortious act is not the discharge 6 itself; rather, the discharge becomes tortious by virtue of the wrongful reasons 7 behind it. As such, where those tortious reasons arise from the unlawful actions of 8 the individual effecting the discharge, he or she should share in liability. 9 Thus, for purposes of the pending motion, the Court assumes that, were the 10 Washington Supreme Court to directly address this issue, it would find that 11 wrongful discharge against public policy claims by an employee are cognizable 12 against the employer and against individual supervisors or managers who 13 participated in the wrongful firing of the employee. 1 Accordingly, at this time the 14 Court denies Defendant Swanson’s Motion to Dismiss insofar as it relates to 15 Plaintiff’s wrongful discharge in violation of public policy claim. 16 // 17 // 18 19 20 1 This ruling does not preclude the Court from later certifying this issue to the Washington Supreme Court, if that becomes necessary. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 10 1 2. Retaliation under RCW 49.46.100 and the FLSA 2 Next, Defendant Swanson argues that Plaintiff fails to state a claim for 3 retaliation under either Washington’s Minimum Wage Act (“MWA”) or the Fair 4 Labor Standards Act (“FLSA”). Regarding Plaintiff’s state law retaliation claim, 5 Defendant Swanson asserts that Plaintiff’s Complaint does not contain sufficient 6 facts to support individual liability because Plaintiff has only “alleged that the 7 District – not Dr. Swanson – fired her.” ECF No. 12 at 4. As for Plaintiff’s FLSA 8 retaliation claim, Defendant argues that Plaintiff Complaint does not “set forth 9 facts to permit the Court to infer that Dr. Swanson exercised control over the 10 nature and structure of the employment relationship or economic control over the 11 relationship.” ECF No. 12 at 6. The Court finds neither argument convincing. 12 Beginning with Plaintiff’s state law claim, the MWA’s anti-retaliation 13 provision, RCW 49.46.100(2), provides that “[a]ny employer who discharges or in 14 any other manner discriminates against any employee because such employee has 15 made any complaint to his or her employer . . . that the employer has violated any 16 provision of this chapter . . . shall be deemed in violation of this chapter . . . .” The 17 MWA defines “employer” as “any individual, partnership, association, 18 corporation, business trust, or any person or group of persons acting directly or 19 indirectly in the interest of an employer in relation to an employee.” RCW 20 49.46.010(4). Based on this statutory language, the MWA provides personal ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 11 1 liability for individuals acting in the interest of an employer for retaliation under 2 RCW 49.46.100. 3 Here, Defendant Swanson does not contest whether individual liability exists 4 under RCW 49.46.100, contrary to Plaintiff’s contentions. See ECF No. 13 at 5 5 (Plaintiff arguing that “Defendant cites no authority for its proposition Mr. 6 Swanson cannot be held individually liable under Ms. Blackman’s RCW 49.46.100 7 retaliation claim.”). Instead, Defendant urges the Court to dismiss Plaintiff’s state 8 law retaliation claim because the Complaint fails to state sufficient facts relating to 9 Defendant Swanson’s alleged conduct in retaliating against Plaintiff. The Court 10 declines to do so. In her Complaint, Plaintiff alleges that she complained to 11 Defendant Swanson that the District was violating overtime laws, Plaintiff 12 informed Defendant Swanson that she would not sit by while the District violated 13 the law, and the District and Defendant Swanson fired Plaintiff in retaliation for 14 her oppositional activity. ECF No. 1 at ¶¶ 26, 51-52. Given the liberal pleading 15 standards, Plaintiff’s allegations raise the inference that Plaintiff was discharged 16 for complaining to Defendant Swanson that the District was violating the MWA’s 17 overtime provisions. Defendant Swanson has thus failed to demonstrate that 18 dismissal of this claim is proper. 19 20 Turning to Plaintiff’s FLSA retaliation claim, § 215(a)(3) of the FLSA makes it unlawful “for any person . . . to discharge or in any other manner ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 12 1 discriminate against any employee because such employee has filed a complaint . . 2 . under or related to this chapter.” 29 U.S.C. § 215(a)(3). The FLSA defines the 3 term “person” to include “an individual.” 29 U.S.C. § 203(a). Section 216(b) in 4 turn creates a private right of action against any “employer” who violates section 5 215(a)(3); and the FLSA defines “employer” to include “any person acting directly 6 or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. 7 §§ 216(b), 203(d). 8 Defendant Swanson primarily argues that “Plaintiff’s complaint did not set 9 forth facts to permit the Court to infer that Dr. Swanson exercised control over the 10 nature and structure of the employment relationship or economic control over the 11 relationship,” as required to establish individual liability for retaliation under the 12 FLSA. ECF No. 12 at 6. However, as Plaintiff notes, the Ninth Circuit recently 13 rejected the “economic control” test as means to determine who may be held liable 14 for retaliation. ECF No. 13 at 6-7. In Arias, the Ninth Circuit declined to use the 15 “economic control” or “economic realities” tests to determine liability for 16 retaliation under the FLSA. Arias v. Raimondo, 860 F.3d 1185, 1189-90 (9th Cir. 17 2017). Instead, relying on the plain language of the anti-retaliation provision, 18 which prohibits “any person”—not just an actual employer—from engaging in 19 retaliatory conduct, the Arias court held that Congress meant “to extend section 20 215(a)(3)’s reach beyond actual employers.” Id. at 1191-92. In light of Arias, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 13 1 Defendant Swanson’s arguments supporting dismissal are futile. Like her state law 2 retaliation claim, Plaintiff’s FLSA retaliation cause of action survives Defendant 3 Swanson’s motion to dismiss. 4 3. Wrongful Discharge Based Upon Breach of Promise 5 Next, Defendant argues that “[a] claim for breach of promise of specific 6 treatment in specific situations (STSS) can only be brought against an employer – 7 not against another employee of the employer.” ECF No. 12 at 7-8. Plaintiff 8 asserts that in Brown v. Scott Paper Worldwide, Co., 143 Wash.2d 349, 363 9 (2001), the Washington Supreme Court recognized individual liability on a breach 10 of promise claim if accompanied by a claim under the Washington Law Against 11 Discrimination (“WLAD”), RCW 49.60 et seq. ECF No. 13 at 7. As such, 12 Plaintiff maintains that her breach of promise claim against Defendant Swanson is 13 proper. 14 Under Washington law, promises of specific treatment in specific situations 15 contained in an employee manual or handbook issued by an employer to its 16 employees may, in appropriate situations, obligate the employer to act in 17 accordance with those promises. If an employer creates an atmosphere of job 18 security and fair treatment with promises of specific treatment in specific situations 19 and an employee is induced thereby to remain on the job and not actively seek 20 other employment, those promises are enforceable components of the employment ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 14 1 relationship. Thompson, 102 Wash.2d at 230. A specific treatment claim is not a 2 species of express or implied contract, but instead is based on a justifiable reliance 3 theory. DePhillips v. Zolt Const. Co., Inc., 136 Wash.2d 26, 34 (1998). To prevail 4 on a claim for specific treatment in specific situations, a plaintiff must prove: (1) a 5 promise of specific treatment in a specific situation; (2) justifiable reliance on the 6 promise by the employee; and (3) a breach of the promise by the employer. 7 Bulman v. Safeway, Inc., 144 Wash.2d 335, 344 (2001). 8 9 In her Complaint, Plaintiff asserts that “[t]he District had written policies and procedures that contained enforceable promises that Dr. Blackman as a 10 certificated administrator/employee could only be discharged for cause, and was 11 entitled to pre-termination notice in writing,” and that Plaintiff was also entitled to 12 notice of her appeal rights and the appeal process. ECF No. 1 at ¶¶ 56, 58. 13 Plaintiff argues that the notice provisions and rights contained in the District’s 14 written policies and procedures amount to promises of specific treatment in 15 specific situations and, “[a]s a result of the District’s failure to follow the 16 enforceable promises set forth in the District’s policies and procedures those 17 promises of specific treatment were breached.” Id. at ¶ 57. Defendant Swanson 18 argues that he cannot be held individually liable for this claim as “[a]ny promises 19 made in the policies and procedures were made by the District and not by Dr. 20 Swanson.” ECF No. 12 at 8. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 15 1 While Plaintiff’s claim may stand against the District, the Court agrees with 2 Defendant Swanson that this claim should be dismissed insofar as it relates to him 3 in his individual capacity. Significantly, Plaintiff has not established that a cause 4 of action for breach of promise of specific treatment in specific situations permits 5 individual liability. Plaintiff exclusively relies on Brown to support her individual 6 liability argument, but the Brown decision has no bearing on her argument; while 7 Brown recognized individual liability for acts of employment discrimination under 8 the WLAD, the Brown decision did not involve or address the issue of individual 9 liability for a claim of promises of specific treatment in specific situations. 143 10 Wash.2d at 359-60. Moreover, Plaintiff does not allege that any of the specific 11 promises at issue here—i.e., that certificated employees could only be discharged 12 for cause and were entitled to pre-termination notice in writing—were made by 13 Defendant Swanson. Rather, all of the alleged promises were made by the District 14 alone. Because the tort is based on justifiable reliance, it follows that the only 15 employer who makes the allegedly enforceable promises should remain on the 16 hook for purposes of liability. Accordingly, the Court grants Defendant Swanson’s 17 Motion to Dismiss insofar as it relates to Plaintiff’s wrongful discharge based upon 18 breach of promise claim. 19 // 20 // ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 16 1 4. First Amendment Retaliation Claim 2 Defendant Swanson argues that Plaintiff fails to state a claim for First 3 Amendment retaliation because her “allegations are insufficient to plausibly show 4 that she acted as a private citizen rather than a public employee.” ECF No. 12 at 9. 5 Defendant asserts that Plaintiff’s report to Defendant Swanson that ASB funds 6 were being misused and that the District was violating wage laws was fulfilling her 7 professional duties. Id. at 11. In response, Plaintiff argues that her speech 8 regarding the illegal use of ASB funds was of public interest and outside her job 9 duties as Principal of Omak Middle School because “[i]llegal use of ASB funds, 10 attempts to cover up the illegal use of ASB funds, and non-payment of overtime 11 compensation” are matters of inherent public concern. ECF No. 13 at 8-12. 12 “[A] governmental employer may impose certain restraints on the speech of 13 its employees, restraints that would be unconstitutional if applied to the general 14 public.” City of San Diego v. Roe, 543 U.S. 77, 80 (2004). To determine whether 15 a public employee has alleged a violation of her First Amendment rights as a result 16 of government retaliation for her speech, the Court considers whether (1) the 17 plaintiff spoke on a matter of public concern; (2) the plaintiff spoke as a private 18 citizen or public employee; (3) the plaintiff’s protected speech was a substantial or 19 motivating factor in the adverse employment action; (4) the state had an adequate 20 justification for treating the employee differently from other members of the ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 17 1 general public; and (5) the state would have taken the adverse employment action 2 even absent the protected speech. Clairmont v. Sound Mental Health, 632 F.3d 3 1091, 1103 (9th Cir. 2011). The plaintiff bears the burden of proof on the first 4 three areas of inquiry, but the burden shifts to the government to prove the last two. 5 Id. 6 Here, Defendant Swanson asserts that “Plaintiff’s allegations are insufficient 7 to plausibly show that she acted as a private citizen rather than a public employee.” 8 ECF No. 12 at 9. In Defendant’s view, “Plaintiff’s report to Dr. Swanson that ASB 9 funds were being misused and that the District was violating wage laws was 10 fulfilling her professional duties”; therefore, Plaintiff was conclusively speaking as 11 a public employee, not a private citizen. Id. at 11. The Court disagrees. 12 The Ninth Circuit has consistently recognized the misuse of public funds, 13 wastefulness, and inefficiency in managing and operating government entities as 14 matters of public concern for purposes of First Amendment retaliation. Keyser v. 15 Sacramento City Unified School Dist., 265 F.3d 741, 747 (9th Cir. 2001) (quoting 16 Roth v. Veteran’s Admin., 856 F.2d 1401, 1405 (9th Cir. 1988)). In her Complaint, 17 Plaintiff specifically alleged that she leveled charges of misuse of ASB funds 18 against the District and, after raising these public concerns, Plaintiff was 19 subsequently notified of her termination. ECF No. 1 at ¶¶ 87-88. Given the liberal 20 pleading standards, the Court finds that Plaintiff’s allegations raise the inference ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 18 1 that her speech was constitutionally protected and a motivating factor behind her 2 termination. 3 Alternatively, Defendant Swanson argues that he is entitled to qualified 4 immunity on Plaintiff’s First Amendment retaliation claim because “[t]here is no 5 pre-existing law that would put Dr. Swanson on notice that Plaintiff’s complaints 6 about misuse of ASB funds or failing to pay overtime would somehow trigger a 7 First Amendment violation.” ECF No. 12 at 13. According to Defendant 8 Swanson, “[t]he claimed violations were not so clearly established that every 9 reasonable superintendent would know that Plaintiff’s First Amendment rights 10 were being violated.” Id. However, in 2017, “both the constitutional protection of 11 employee speech and a First Amendment cause of action for retaliation against 12 protected speech were clearly established.” Coszalter v. City of Salem, 320 F.3d 13 968, 989 (9th Cir. 2003). Moreover, as early as 2001, the Ninth Circuit held that 14 employee speech made to a non-public audience regarding misuse of funds was 15 protected by the First Amendment. Keyser v. Sacramento City Unified School 16 District, 265 F.3d 741, 745, 747-48 (9th Cir. 2001). Thus, at the time of the 17 alleged First Amendment violations in this case, relevant legal precedents were 18 sufficiently specific to put Defendant Swanson on notice that his actions were 19 potentially unconstitutional. Defendant Swanson is therefore not entitled to 20 qualified immunity. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 19 1 2 Accordingly, the Court denies Defendant Swanson’s Motion to Dismiss insofar as it relates to Plaintiff’s First Amendment retaliation claim. 3 5. Disability Discrimination under RCW 49.60 4 Finally, Defendant Swanson argues that Plaintiff’s Complaint “does not set 5 forth facts that plausibly allow the Court to draw a reasonable inference that Dr. 6 Swanson is liable for disability discrimination or retaliation” under the WLAD. 7 ECF No. 12 at 15. Specifically, Defendant Swanson argues that “Plaintiff did not 8 allege facts describing the extent of her anxiety and depression, how her ‘mental 9 health problems’ substantially limited her ability to perform her job or that she 10 11 requested any type of accommodation.” Id. at 14. The WLAD prohibits an employer from discharging any employee “because 12 of . . . the presence of any sensory, mental, or physical disability.” RCW 13 49.60.180(2). Under RCW 49.60.180, a disabled employee has a cause of action 14 for at least two different types of discrimination. The employee may allege failure 15 to accommodate where the employer failed to take steps “reasonably necessary to 16 accommodate the employee’s condition.” Jane Doe v. Boeing, 121 Wash.2d 8, 17 17 (1993). The employee may also file a disparate treatment claim if the employer 18 discriminated against the employee because of the employee’s condition. Riehl v. 19 Foodmaker, Inc., 152 Wash.2d 138, 145 (2004). To establish a prima facie case of 20 failure to reasonably accommodate a disability, a plaintiff must show that (1) she ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 20 1 had a sensory, mental, or physical abnormality that substantially limited her ability 2 to perform the job; (2) she was qualified to perform the job; (3) she gave the 3 employer notice of the abnormality and its substantial limitations; and (4) upon 4 notice, the employer failed to affirmatively adopt measures available to it and 5 medically necessary to accommodate the abnormality. Id. In a disparate treatment 6 discrimination case, the employee bears the burden of establishing that she (1) is a 7 protected class (disabled), (2) was discharged, and (3) was doing satisfactory work. 8 Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wash.2d 516, 9 527-28 (2017). 10 In her Complaint, Plaintiff alleges that she is a member of a protected class 11 based on her disability, she was terminated by the District and Defendant Swanson 12 after they learned of her mental health problems, and she was satisfactorily 13 performing her job duties at the time of her termination. ECF No. 1 at ¶¶ 99-101. 14 The Court finds that Plaintiff has sufficiently pleaded a cause of action for 15 disparate treatment under the WLAD. 16 Plaintiff also maintains that, after receiving notice of her disability, “the 17 District and Dr. Swanson failed to accommodate Dr. Blackman by engaging in the 18 interactive process and therefore is in violation of the law.” Id. at ¶ 102 (emphasis 19 in original). Unlike her disparate treatment claim, the Court finds that Plaintiff’s 20 failure to accommodate allegations are of the type wholly inadequate under ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 21 1 Twombly and Iqbal. Other than conclusory statements contained in a single 2 paragraph of her Complaint, none of the elements of this cause of action have been 3 properly pleaded with short, plain statements of fact. 4 Federal Rule of Civil Procedure 15(a), leave to amend a party’s pleading 5 “should [be] freely give[n] . . . when justice so requires,” because the purpose of 6 the rule is “to facilitate decision on the merits, rather than on the pleadings or 7 technicalities.” Novak v. United States, 795 F.3d 1012, 1020 (9th Cir. 2015) 8 (citation omitted). Here, the Court grants Plaintiff leave to amend her pleadings to 9 clarify her failure to accommodate claim. 10 11 12 ACCORDINGLY, IT IS HEREBY ORDERED: 1. Defendants’ Motion to Dismiss (ECF No. 11) is GRANTED in part and DENIED in part. 13 2. Plaintiff is granted leave to amend her Complaint regarding her failure to 14 accommodate claim. Plaintiff shall file an Amended Complaint within 15 14 days of this Order. 16 17 18 The District Court Executive is directed to enter this Order and furnish copies to counsel. DATED June 6, 2019. 19 20 THOMAS O. RICE Chief United States District Judge ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SWANSON’S MOTION TO DISMISS ~ 22
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