1 EASTER U N . S D . I S D T I R S I T C R T I C O T F C W O A U S R H T I NGTON Jan 06, 2026 2 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5
6 DOMINIC DANNAN, a Washington Case No: 1:24-CV-03111-MKD State resident and Yakima City Police 7 Officer, ORDER GRANTING PLAINTIFF’S Plaintiff, MOTION TO ACCEPT LATE 8 RESPONSE AND GRANTING IN v. PART AND DENYING IN PART 9 DEFENDANTS’ SECOND MOTION CITY OF YAKIMA, a municipal FOR JUDGMENT ON THE 10 corporation organized and existing PLEADINGS under the laws of the state of 11 Washington; YAKIMA POLICE ECF Nos. 27, 28 DEPARTMENT; and JOHN DOE 12 AND JANE DOE 1-50,
13 Defendants.
14 Before the Court are Defendants’ Second Motion for Partial Judgment on the 15 Pleadings, ECF No. 27, and Plaintiff’s related Motion to Accept Late Response, 16 ECF No. 28.1 The Court has reviewed the motions and record and is fully 17
18 1 The Court notes that Plaintiff’s motion does not comply with LCivR 10(d), which 19 requires, “All pleadings must be prepared in the equivalent of either a 20 proportionately spaced typeface of 14 points or more or a monospaced typeface of 1 informed. For the reasons explained below, the Court grants Plaintiff’s Motion to 2 Accept Late Response, ECF No. 28, and grants in part and denies in part
3 Defendant’s Second Motion for Partial Judgment on the Pleadings, ECF No. 27. 4 BACKGROUND 5 A. Factual History
6 The Second Amended Complaint asserts the following facts. Plaintiff is a 7 police officer in the patrol division of the Yakima City Police Department (the 8 “Department”) where he responds to dispatch calls for service, enforces traffic 9 laws, patrols for criminal activity, performs arrests, and completes corresponding
10 reports. ECF No. 24 at 2 ¶ 5.2. Throughout his employment with the Department, 11 Plaintiff experienced “serious and harmful” issues with the radio communications 12 equipment. Id. at 3 ¶ 5.4. These issues included weak radio reception which
13 precluded use of the extended microphone, a “dysfunctional” radio tower on top of 14 15
no more than 10.5 characters per inch (e.g., size 12 Courier New). Text and 16 footnotes must be double spaced.” Plaintiff’s motion appears to be in a 17 proportionately spaced typeface of 12 points, rather than 14 points, and is not 18 double spaced. The Court cautions Plaintiff to review and comply with the Local 19 Rules regarding formatting. 20 1 the police station, and a lack of radio reception at a 5-story medical center. Id. at 3 2 ¶¶ 5.6-5.8.
3 The Department, including Chief of Police Matthew Murray, was aware of 4 these problems and radio failure was the subject of jokes throughout the 5 Department. Id. at 3 ¶ 5.5. Chief Murray told Plaintiff that “radios are expensive”
6 and budgetary concerns were offered as the “excuse[] for placing office[r] safety in 7 jeopardy.” Id. at 3 ¶¶ 5.9-5.10. 8 “[P]olice unions have addressed the issues of the radios not working over the 9 past ten years.” Id. at 4 ¶ 5.14.
10 The City of Yakima was also aware of the problems with the radios. City 11 Manager Cliff Moore communicated that “he would replace [the] radios at 12 $150,000 per year until all the radios were replaced by 2024.” Id. at 3 ¶ 5.7. This
13 action had not been completed at the time of the Second Amended Complaint. Id. 14 The Yakima County Commissioners also instructed the Yakima County 15 Council “to place a 2/3 of 1% sales tax measure on the February 2022 election 16 ballot to upgrade the radio system.” Id. at 3 ¶ 5.10. “This measure was placed on
17 a special election and passed in April 2025 with approximately 71% of voters 18 approving the proposal. However, this is in the beginning stages and it is not 19 known if the purchase has even been made, let alone acquiring the items to
20 installation.” Id. 1 On July 26, 2021, Plaintiff was shot in the foot while responding to an 2 incident on patrol. Id. at 2 ¶ 5.1, 4 ¶ 5.12. Plaintiff attempted to call for backup
3 from his fellow officers, who were less than a block away, but they did not hear his 4 call. Id. at 4 ¶ 5.13. Plaintiff alleges that the delay in help from his fellow officers 5 contributed to his injuries. Id.
6 On November 26, 2023, Plaintiff filed a complaint with the Washington 7 State Department of Labor and Industries, claiming that the inoperable police 8 radios in the Department were a safety or health hazard and that the Department 9 had taken no action to remedy the situation. Id. at 4 ¶ 5.16, 5 ¶ 5.34; see also ECF
10 No. 24-1 at 42-44. On July 25, 2024, Plaintiff also filed a similar complaint with 11 the U.S. Department of Labor Occupational Safety and Health Administration 12 (“OSHA”), which was transferred to the Washington State Department of Labor
13 and Industries. ECF No. 42 at 4 ¶ 5.16, 5 ¶ 5.34; see also ECF No. 24-1 at 47.2 14
15 2 Plaintiff’s Second Amended Complaint provides inconsistent information 16 regarding the dates these complaints were filed. Plaintiff initially states that his 17 Complaint to OSHA was filed on November 26, 2023. ECF No. 24 at 4 ¶ 5.16. 18 Plaintiff later states his complaint to OSHA was filed on July 25, 2024, which 19 aligns with the communication from OSHA, and that his report to the Washington
20 State Department of Labor and Industries was filed on November 26, 2023, which 1 Plaintiff alleges that following these reports, he has experienced numerous 2 adverse actions by the Department including internal investigations and
3 corresponding discipline, violations of his due process rights, and being 4 disqualified from taking the sergeant’s exam. Id. at 4 ¶ 5.17, 6-7 ¶¶ 5.26-5.32, 7- 5 11 ¶¶ 5.36-5.58. Plaintiff also alleges that the City of Yakima is responsible for
6 having his case with the Washington State Department of Labor and Industries 7 closed. Id. at 7 ¶ 5.32, 10 ¶ 5.52, 24 ¶ 13. 8 B. Procedural History 9 Plaintiff’s First Amended Complaint alleged the following seven cause of
10 action: (1) violation of Plaintiff’s Due Process rights under 42 U.S.C. § 1983, (2) 11 retaliation under the Washington State Law Against Discrimination (“WLAD”), 12 (3) retaliation pursuant to OSHA and Washington Industrial Safety and Health Act
13 (“WISHA”), (4) negligence, (5) intentional and negligent misrepresentation, (6) 14 15 16
also aligns with the attached report to the Washington State Department of Labor 17 and Industries, ECF No. 24-1 at 42-44. ECF No. 24 at 5 ¶ 5.24. However, in the 18 same paragraph, Plaintiff also references “November 26, 2025,” which appears to 19 be a typographical error as the first report was filed on November 26, 2023. 20 1 hostile work environment, and (7) intentional and negligent infliction of emotional 2 distress. ECF No. 2 at 4-7.
3 Defendants moved for partial judgment on the pleadings under Fed. R. Civ. 4 P. 12(c). ECF No. 16. The Court granted Defendants’ motion and granted 5 Plaintiff leave to amend his Complaint as to the following causes of action: (1)
6 retaliation under WLAD, (2) retaliation pursuant to WISHA, (3) intentional 7 misrepresentation, (4) retaliation pursuant to Title VII, (5) intentional and 8 negligent infliction of emotional distress. ECF No. 23 at 7-27. The Court 9 dismissed, without leave to amend, Plaintiff’s claims for retaliation pursuant to
10 OSHA, negligent misrepresentation, and common law hostile work environment. 11 Id. at 15-16, 21, 23. 12 Plaintiff subsequently filed a Second Amended Complaint, ECF No. 24, and
13 Defendants again move for partial judgment on the pleadings. ECF No. 27. 14 LEGAL STANDARD 15 A. Judgment on the Pleadings 16 “After the pleadings are closed—but early enough not to delay trial—a party
17 may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The standard 18 governing a Rule 12(c) motion for judgment on the pleadings is “functionally 19 identical” to that governing a Rule 12(b)(6) motion to dismiss. United States ex
20 rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 1 2011) (citations omitted). “A judgment on the pleadings is properly granted when, 2 taking all the allegations in the non-moving party’s pleadings as true, the moving
3 party is entitled to judgment as a matter of law.” United States v. Teng Jiao Zhou, 4 815 F.3d 639, 642 (9th Cir. 2016) (quoting Fajardo v. Cnty. of Los Angeles, 179 5 F.3d 698, 699 (9th Cir. 1999)).
6 B. Leave to Amend 7 “[A]lthough Rule 12(c) does not mention leave to amend, courts have 8 discretion both to grant a Rule 12(c) motion with leave to amend . . . and to simply 9 grant dismissal of the action instead of entry of judgment.” Lonberg v. City of
10 Riverside, 300 F. Supp. 2d 942, 945 (C.D. Cal. 2004) (citations omitted). 11 DISCUSSION 12 As an initial matter, Defendants seek to exclude Plaintiff’s late response.
13 ECF No. 30 at 1-4. Defendants also seek judgment on the pleadings pursuant to 14 Fed. R. Civ. P. 12(c) on the following claims: (1) retaliation under WLAD, (2) 15 retaliation pursuant to WISHA, (3) intentional misrepresentation, (4) retaliation 16 pursuant to Title VII, and (5) intentional and negligent infliction of emotional
17 distress. ECF No. 27 at 5. Plaintiff, in turn, alleges that his Amended Complaint 18 “added specific, detailed facts curing every deficiency the Court identified” when 19 it granted Defendant’s First Motion for Judgment on the Pleadings. ECF No. 29 at
20 1. The Court addresses each of these arguments in turn. 1 A. Late Response 2 Under Fed. R. Civ. P. 6(b)(1)(B), “[w]hen an act may or must be done
3 within a specified time, the court may, for good cause, extend the time . . . on 4 motion made after the time has expired if the party failed to act because of 5 excusable neglect.” The determination of whether neglect is excusable is “an
6 equitable one, taking account of all relevant circumstances surrounding the party’s 7 omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 8 380, 395 (1993) (footnote omitted). “These include . . . the danger of prejudice to 9 the [opposing party], the length of the delay and its potential impact on judicial
10 proceedings, the reason for the delay, including whether it was within the 11 reasonable control of the movant, and whether the movant acted in good faith.” Id. 12 (citation and footnote omitted); Hassanshahi v. Drug Enf’t Admin., 776 F. App’x
13 414, 415 (9th Cir. 2019) (“A motion to extend time after a filing deadline has 14 passed may be granted upon a showing of excusable neglect.” (citing Fed. R. Civ. 15 P. 6(b)9(1)B(B); Pioneer Inv. Servs. Co., 507 U.S. at 395)). 16 Plaintiff asserts that the delay in filing his response was due to excusable
17 neglect. Specifically, counsel for Plaintiff asserts via a declaration that his 18 paralegal was overseas on bereavement leave in September 2025 and subsequently 19 resigned on October 6, 2025. ECF No. 28 at 4 ¶ 3. Due to her absence,
20 Defendant’s Second Motion for Partial Judgment on the Pleadings, which was filed 1 on October 15, 2025, was not entered into the firm’s case management system. Id. 2 at 4 ¶ 4. Plaintiff’s counsel asserts that he discovered this “oversight” November
3 14, 2025, while reviewing the docket and “promptly prepared and filed [the 4 Motion to Accept Late Response] and the Response the next day, November 15, 5 2025.” Id. at 4 ¶ 5. Plaintiff’s counsel also asserts that his response was
6 approximately 17 days late, that this short delay “will not impact the judicial 7 proceedings as discovery is ongoing and other claims remain pending,” and that he 8 has acted in good faith throughout this litigation. Id. at 4 ¶¶ 6, 8-10. 9 Defendants assert that between Plaintiff’s counsel’s paralegal resigning on
10 October 6, 2025, and Defendant’s filing their Second Motion for Judgment on the 11 Pleadings on October 15, 2025, Plaintiff’s counsel had “nine days to determine 12 how he would calendar future filing deadlines.” ECF No. 30 at 3. While
13 Defendants are correct that staff turnover is part of operating a legal practice, the 14 Ninth Circuit has found calendaring mistakes to be instances of excusable neglect. 15 Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1262 (9th Cir. 2010) (citing 16 Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir. 2004)). Further, Defendants do not
17 point to any specific manner in which they were prejudiced. ECF No. 30 at 3-4 18 (“Defendants are not going to presume to know how much time the Court requires 19
20 1 to review Defendants’ reply to Plaintiff’s response to its Second Motion.”).3 2 Regarding the remaining factors, the Court concurs that the 10-day delay4
3 did not substantially impact the proceedings as discovery remains ongoing and is 4 not set to close until February 13, 2026. ECF No. 13 at 17. Further, there is no 5 evidence before the Court that Plaintiff’s counsel did not act in good faith.
7 3 Relatedly, Defendants also ask the Court to exclude Plaintiff’s Motion to Accept 8 Late Filing as untimely as, under LCivR 7(i)(2)(A), the calculated hearing date for 9 this motion, December 15, 2025, would have been later than the hearing date for 10 Defendants’ underlying Second Motion for Partial Judgment on the Pleadings, 11 December 4, 2025. As the hearing date for both motions has passed, the Court 12 declines to exclude Plaintiff’s Motion for Late Filing on this basis.
13 4 Plaintiff’s Motion to Accept Late Response references a 14-day response period 14 and asserts that Plaintiff’s response was 17 days late. ECF No. 28 at 3. However, 15 a motion for judgment on the pleadings is a dispositive motion. See LCivR 16 7(b)(3). Under LCivR 7(c)(2)(B), responses to dispositive motions shall be filed
17 within 21 days of the motion. Here, Defendants’ Second Motion for Judgment on 18 the Pleadings was filed on October 15, 2025. ECF No. 27. Thus, Plaintiff’s 19 response was due on November 5, 2025. Plaintiff filed his response 10 days later
20 on November 15, 2025. ECF No. 28. 1 In sum, the Court finds Plaintiff has sufficiently established excusable 2 neglect and grants his Motion to Accept Late Response, ECF No. 28.
3 B. WLAD Claim 4 Under WLAD, an employee may establish a prima facie case of retaliation 5 through the McDonnell Douglas burden-shifting test. Milligan v. Thompson, 42
6 P.3d 418, 424 (Wash. Ct. App. 2002). A plaintiff must show that “(1) he engaged 7 in a statutorily protected activity, (2) [the defendant] took adverse employment 8 action against him, and (3) there is a causal link between the activity and adverse 9 action.” Id. (citation omitted). Once the plaintiff establishes a prima facie case,
10 the burden shifts to the defendant to present evidence of a legitimate, 11 nonretaliatory reason for its actions, and then the plaintiff must present evidence 12 that the reason is pretextual. Id.
13 RCW 49.60.210 establishes three categories of whistleblowing activities 14 protected under WLAD.5 The first category protects an employee against the 15 16
5 RCW 49.60.210 states in full: 17 (1) It is an unfair practice for any employer, employment 18 agency labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or 19 she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted 20 in any proceeding under this chapter. 1 “unfair practices” of discrimination or discharge for opposing “practices 2 forbidden” by RCW 49.60. RCW 49.60.210(1). With regard to “unfair practices
3 of employers,” these “practices forbidden” include discrimination by an employer 4 based on an individual’s “age, sex, marital status, sexual orientation, race, creed, 5 color, national origin, citizenship or immigration status, honorably discharged
6 veteran or military status, or the presence of any sensory, mental, or physical 7 disability or the use of a trained dog guide or service animal by a person with a 8 disability.” RCW 49.60.180(1)-(4). 9 The second category prohibits discrimination against a “whistleblower,”
10 RCW 49.60.210(2), defined as “[a]n employee who in good faith reports alleged 11 improper governmental action to the auditor or other public official, as defined in 12 subsection (7) of this section . . . .” RCW 42.40.020(10)(a). Subsection (7)
13 defines a “public official” as “the attorney general’s designee or designees; the 14
15 (2) It is an unfair practice for a government agency or government manager or supervisor to retaliate against a 16 whistleblower as defined in chapter 42.40 RCW.
17 (3) It is an unfair practice for any employer, employment agency, labor union, government agency, government 18 manager, or government supervisor to discharge, expel, discriminate, or otherwise retaliate against an individual 19 assisting with an office of fraud and accountability investigation under RCW 74.04.012, unless the individual 20 has willfully disregarded the truth in providing information to the office. 1 director, or equivalent thereof in the agency where the employee works; an 2 appropriate number of individuals designated to receive whistleblower reports by
3 the head of each agency; or the executive ethics board.” RCW 42.40.020(7). The 4 statute further defines “auditor” as “the office of the state auditor” and “employee” 5 as “any individual employed or holding office in any department or agency of state
6 government.” RCW 42.40.020(1), (2) (emphasis added). 7 The third category prohibits discrimination or retaliation against an 8 individual assisting in an office of fraud and accountability investigation directed 9 “at any act prohibited or declared to be unlawful in the public assistance programs
10 administered by the [D]epartment [of Social and Health Services (‘DSHS’)].” 11 RCW 74.04.012(1); see also RCW 49.60.210(3). 12 Defendants assert that Plaintiff’s Second Amended Complaint does not
13 satisfy RCW 49.60.210(1)-(3). ECF No. 27 at 12. The Court concurs and 14 concludes that Plaintiff does not allege a prima facie claim of retaliation under 15 WLAD. 16 First, Plaintiff does not allege a claim under RCW 49.60.210(1), as he fails
17 to allege any facts showing that he “has opposed any practices” or that he “has 18 filed a charge, testified, or assisted in any proceeding” regarding “practices 19 forbidden” by RCW 49.60, such as opposing discrimination by an employer based
20 on “age, sex, marital status, sexual orientation, race, creed, color, national origin, 1 citizenship or immigration status, honorably discharged veteran or military status, 2 or the presence of any sensory, mental, or physical disability or the use of a trained
3 dog guide or service animal by a person with a disability.” See generally ECF No. 4 24; see also RCW 49.60.210(1); RCW 49.60.180(1)-(4).6 5 Second, Plaintiff does not allege a claim under RCW 49.60.210(2), as he
6 does not allege he complained to the office of the state auditor, the attorney 7 general’s designee, the agency director where he worked, an individual designated 8 to receive whistleblower reports by the agency head, or the executive ethics board. 9 See generally ECF No. 24; see also RCW 49.60.210(2); RCW 42.40.020(1), (7),
10 (10)(a). Further, as an employee of the City of Yakima, not the state, Plaintiff does 11 not qualify as a whistleblower. ECF No. 24 at 2 ¶ 5.2; see also RCW 12 42.40.020(2); Davis v. Washington State Dep’t of Corr., 158 Wash. App. 1054
13 (2010) (“[The plaintiff] failed to demonstrate that he was a whistleblower when he 14 filed his EEOC complaint because he was not a state or department employee at 15 the time.”). 16
6 Plaintiff again argues he “pled opposition to practices he reasonably and in good 17 faith believed were forbidden by WLAD.” ECF No. 29 at 3 (citing Alonso v. 18 Qwest Commc’ns Co., LLC, 315 P.3d 610 (Wash. Ct. App. 2013). The Court 19 previously addressed and rejected this argument. ECF No. 23 at 12 & n.5. 20 1 Third, Plaintiff does not allege a claim RCW 49.60.210(3), as he does not 2 allege he assisted in an office of fraud and accountability investigation regarding
3 public assistance programs administered by DSHS. See RCW 49.60.210(3); RCW 4 74.04.012(1). 5 While Plaintiff has failed to allege a retaliation claim under WLAD, Plaintiff
6 now asserts, for the first time, that he is alleging a discrimination claim under 7 WLAD based on “permanent foot nerve damage” and Post-Traumatic Stress 8 Disorder (“PTSD”). ECF No. 29 at 3. The Court granted leave for Plaintiff “leave 9 to amend to allege a retaliation claim under WLAD.” ECF No. 23 at 13 (emphasis
10 added). The Court did not grant Plaintiff leave to amend to allege a discrimination 11 claim nor has Plaintiff moved for leave to file such a claim. See id. at 28 12 (“Plaintiff may not add additional claims, parties, or requests for relief without
13 separate leave of the Court.”); see also Diemert v. City of Seattle, 689 F. Supp. 3d 14 956, 963-66 (W.D. Wash. 2023) (showing retaliation and discrimination claims 15 under WLAD are distinct). Yet Plaintiff now asserts he is bringing a 16 discrimination claim under WLAD when his First Amended Complaint did not
17 reference “disability,” “Post-Traumatic Stress Disorder, or “PTSD.” See generally 18 ECF No. 2. As the Court did not grant Plaintiff leave to amend to bring a 19 discrimination claim under WLAD, to the extent Plaintiff alleges such a claim it is
20 dismissed. Gerritsen v. Warner Bros. Ent. Inc., 112 F. Supp. 3d 1011, 1048 (C.D. 1 Cal. 2015) (“In cases like this one . . . where leave to amend is given to cure 2 deficiencies in certain specified claims, courts have agreed that new claims alleged
3 for the first time in the amended pleading should be dismissed or stricken” 4 (quoting DeLeon v. Wells Fargo Bank, N.A., No. 10–CV–1390, 2010 WL 5 4285006, at *3 (N.D. Cal. Oct. 22, 2010))).
6 Last, Plaintiff also asserts, “Even if a technical statutory gap exists, 7 Washington recognizes a common-law claim for retaliation in violation of public 8 policy when no adequate statutory remedy exists.” ECF No. 29 at 3. As the Court 9 has previously explained, the tort of wrongful discharge in violation of public
10 policy requires an employee to be discharged from their employment, not just to 11 suffer retaliation, and Plaintiff does not allege that he was discharged. ECF No. 23 12 at 15 (citing Martin v. Gonzaga Univ., 425 P.3d 837, 843 (Wash. 2018); Roberts v.
13 Dudley, 993 P.2d 901, 911 (Wash. 2000), as amended (Feb. 22, 2000)). 14 In sum, even taking Plaintiff’s allegations as true, Plaintiff does not allege a 15 prima facie retaliation claim under WLAD and the Court dismisses this claim 16 without leave to amend. See Cafasso, 637 F.3d at 1058 (“The district court's
17 discretion to deny leave to amend is particularly broad where plaintiff has 18 previously amended the complaint.” (alteration and citation omitted)). To the 19 extent Plaintiff alleges a discrimination claim under WLAD, such a claim is also
20 dismissed. Gerritsen, 112 F. Supp. 3d at 1048. As the date to amend pleadings 1 has passed, any further amendments to allege a discrimination claim under WLAD 2 requires Court approval, which Plaintiff has not sought or received.
3 C. WISHA Claim 4 WISHA prohibits discharge or discrimination against “any employee 5 because such employee has filed any complaint or instituted or caused to be
6 instituted any proceeding under or related to [RCW 49.17].” RCW 49.17.160(1). 7 An employee who believes such discrimination has occurred “may, within 90 days 8 after such violation occurs, file a complaint with the director [of the Washington 9 State Department of Labor and Industries] alleging such discrimination.” RCW
10 49.17.160(2). If the director determines there has been a violation, he may issue a 11 citation “ordering appropriate relief, and may assess a civil penalty.” RCW 12 49.17.160(4)(a). If the director finds insufficient evidence of a violation, he will
13 issue a letter of closure and the employee may, within 30 days of the 14 determination, institute a private action. RCW 49.17.160(5). 15 Defendants assert that Plaintiff still does not allege he received a letter of 16 closure from the Washington State Department of Labor and Industries, and
17 therefore his WISHA retaliation claim should be dismissed. ECF No. 27 at 14. 18 The Second Amended Complaint alleges, “The City of Yakima Police 19 Department violated Washington State public policy through retaliation against
20 Plaintiff, Yakima Police Officer Dominic Dannan for his complaints to both 1 Washington State Labor & Industries (“L&I”), RCW 49.17.160.” ECF No. 24 at 2 22 ¶ 6.11. However, Plaintiff does not allege that he has received a letter of
3 closure. See RCW 49.17.160(2), (5). This procedural requirement must be met 4 before Plaintiff may “institute the action on his . . . own behalf.” RCW 5 49.17.160(5); see also Hause v. Spokane Cnty., 31 Wash. App. 2d 1076, review
6 denied, 3 Wash. 3d 1034, 559 P.3d 1014 (2024) (“ [The plaintiff] does not suggest 7 that the director of the Department of Labor & Industries issued a letter authorizing 8 him to file suit, as required by RCW 49.17.160(5).”). 9 Plaintiff again argues that it is improper for Defendants to “demand proof of
10 a ‘right-to-sue’ letter” and that this is an “evidentiary issue.” ECF No. 29 at 4; see 11 also ECF No. 21 at 2. The Court previously rejected this argument and again 12 declines to make the “unwarranted deduction[]” that Plaintiff received a letter of
13 closure from the Washington State Department of Labor. Sprewell v. Golden State 14 Warriors, 266 F.3d 979, 988 (9th Cir.) (citation omitted), opinion amended on 15 denial of reh’g, 275 F.3d 1187 (9th Cir. 2001). 16 In sum, as Plaintiff has not alleged facts showing that he followed the
17 procedures required by WISHA before filing a private action, the Court dismisses 18 this claim without leave to amend. See Cafasso, 637 F.3d at 1058. 19
20 1 D. Intentional Misrepresentation Claims 2 To prove intentional misrepresentation, a plaintiff must prove by “clear,
3 cogent, and convincing evidence” the following elements: 4 (1) representation of an existing fact; (2) materiality; (3) falsity; (4) the speaker’s knowledge of its falsity; (5) intent 5 of the speaker that it should be acted upon by the plaintiff; (6) plaintiff’s ignorance of its falsity; (7) plaintiff’s 6 reliance on the truth of the representation; (8) plaintiff’s right to rely upon it; and (9) damages suffered by the 7 plaintiff.
8 Stiley v. Block, 925 P.2d 194, 204 (Wash. 1996) (footnote omitted); see also 9 Munoz v. Bean, 192 Wash. App. 1060 (2016). “A promise of future performance 10 is not a representation of an existing fact and will not support a fraud claim.” W. 11 Coast Inc. v. Snohomish Cnty., 48 P.3d 997, 1000 (Wash. Ct. App. 2002) (footnote 12 omitted); see also Westby v. Gorsuch, 50 P.3d 284, 291 (Wash. Ct. App. 2002) 13 (“A representation of an existing fact must exist independently of (1) any future 14 acts or actions on the part of the party making the statement; (2) the occurrence of 15 any particular event in the future; and (3) the particular uses of the person to whom 16 the statement is made.” (citation omitted)). 17 Defendants acknowledge that Plaintiff “cure[d] the deficiencies” of his 18 intentional misrepresentation claim previously identified by the Court by alleging 19 “Defendants made a promise to replace the inoperative police radios with the
20 purpose of deceiving Plaintiff and that they had no intention of performing this 1 promise.” ECF No. 27 at 15. However, Defendants assert that the claim of 2 intentional misrepresentation should still be dismissed because “it is illogical for
3 Plaintiff to claim that he relied, and had a right to rely, on Moore’s representation 4 at the time Plaintiff was shot in 2021 when the representation related to what 5 would be accomplished by 2024.” Id.
6 The Washington Court of Appeals has held, “‘If a promise is made for the 7 purpose of deceiving and with no intention of performing,’ it may be actionable.” 8 Flower v. T.R.A. Indus., Inc., 111 P.3d 1192, 1202 (Wash. Ct. App. 2005) (quoting 9 Sprague v. Sumitomo Forestry Co., 709 P.2d 1200, 1206 (Wash. 1985)) (alteration
10 omitted). Plaintiff now alleges that Defendants made the promise to replace the 11 radios with a purpose to deceive Plaintiff and that they had no intention of 12 performing this promise. Whether it was “illogical” for Plaintiff to rely on this
13 promise is a factual issue for a later date. Plaintiff has corrected the pleading 14 deficiencies previously identified by the Court as to this claim. 15 In sum, taking Plaintiff’s allegations as true, Plaintiff has alleged a prima 16 facie intentional misrepresentation claim. Accordingly, the Court denies the
17 motion as to this claim. 18 E. Title VII Claim 19 Under Title VII it is unlaw for employer to discriminate against an
20 employee, “because he has opposed any practice made an unlawful employment 1 practice by this subchapter, or because he has made a charge, testified, assisted, or 2 participated in any manner in an investigation, proceeding, or hearing under this
3 subchapter.” 42 U.S.C. § 2000e-3(a). “Unlawful employment practices” are those 4 that discriminate on the basis of an individual’s race, color, religion, sex, or 5 national origin. Id. § 2000e-2.
6 Defendants assert that Plaintiff has only “made threadbare allegations that he 7 ‘alleged a prima facie retaliation claim under WLAD and under Title VII.’” ECF 8 No. 27 at 16 (quoting ECF No. 24 at ¶¶ 5.62, 6.56)). Plaintiff, in turn, asserts that 9 he “pleads opposition to practices [he] reasonably believed violated Title VII, plus
10 post-injury perceived-disability (which is covered under the ADA and by 11 incorporation into Title VII retaliation standards).” ECF No. 29 at 4. 12 Plaintiff’s Second Amended Complaint fails to allege he opposed “unlawful
13 employment practices” that discriminated on the basis of an individual’s race, 14 color, religion, sex, or national origin. See ECF No. 24. While Plaintiff asserts 15 that he “plead[ed] opposition to practices [he] reasonably believed violated Title 16 VII,” federal courts have held that opposition to safety practices does not support a
17 Title VII relation claim. See Maner v. Dignity Health, 350 F. Supp. 3d 899, 909 18 (D. Ariz. 2018) (“No retaliation claim exists under Title VII for an employer’s 19 refusal to rehire an employee for reporting safety violations to the EEOC.
20 Elimination of safety violations in employment does not ‘fairly fall within the 1 protection of Title VII to sustain a claim of unlawful retaliation.’” (alteration and 2 citation omitted)), aff'd, 9 F.4th 1114 (9th Cir. 2021). Thus, Plaintiff “did not have
3 an objectively reasonable belief that Defendants’ conduct violated Title VII.” Id. 4 Alternatively, Plaintiff now asserts that the ADA is “incorporat[ed] into Title 5 VII relation standards.” ECF No. 29 at 4. While “[t]he statutory scheme and
6 language of the ADA and Title VII are identical in many respects,” Buchanan v. 7 Watkins & Letofsky, LLP, 30 F.4th 874, 877 (9th Cir. 2022) (quoting Walsh v. Nev. 8 Dep’t of Human Res., 471 F.3d 1033, 1038 (9th Cir. 2006)), the text of Title VII 9 contains no language incorporating the ADA nor does Plaintiff direct the Court to
10 any case law to support this theory of incorporation. 11 As Plaintiff has failed to allege a retaliation claim under Title VII, the Court 12 dismisses this claim without leave to amend. See Cafasso, 637 F.3d at 1058. To
13 the extent Plaintiff alleges a claim under the ADA, such a claim is also dismissed. 14 Gerritsen, 112 F. Supp. 3d at 1048. As the date to amend pleadings has passed, 15 any further amendments to allege a claim under the ADA requires Court approval, 16 which Plaintiff has not sought or received.
17 F. Intentional and Negligent Infliction of Emotional Distress Claim 18 1. Intentional Infliction of Emotional Distress (“IIED”) 19 IIED is also known as outrage in the state of Washington. Kloepfel v. Bokor,
20 66 P.3d 630, 631 n.1 (2003) (citing Snyder v. Med. Serv. Corp. of E. Wash, 35 P.3d 1 1158, 1167 (Wash. 2001)). To prove IIED, a plaintiff must show: “(1) extreme 2 and outrageous conduct; (2) intentional or reckless infliction of emotional distress;
3 and (3) actual result to the plaintiff of severe emotional distress.” Dicomes v. 4 State, 782 P.2d 1002, 1012 (Wash. 1989) (quoting Rice v. Janovich, 742 P.2d 5 1230, 1238 (Wash. 1987) and citing Restatement (Second) of Torts § 46 (1965))
6 (quotation marks omitted). 7 A claim of outrage requires more than “mere insults and indignities, such as 8 causing embarrassment or humiliation.” Dicomes, 782 P.2d at 1013. A 9 defendant’s actions must be “[s]o outrageous in character, and so extreme in
10 degree, as to go beyond all possible bounds of decency, and to be regarded as 11 atrocious, and utterly intolerable in a civilized community.” Grimsby v. Samson, 12 530 P.2d 291, 295 (Wash. 1975) (quotation marks omitted). “The question of
13 whether certain conduct is sufficiently outrageous is ordinarily for the jury, but it is 14 initially for the court to determine if reasonable minds could differ on whether the 15 conduct was sufficiently extreme to result in liability.” Dicomes, 782 P.2d at 1013 16 (citing Phillips v. Hardwick, 628 P.2d 506, 510 (Wash. Ct. App. 1981)).
17 Defendants assert that despite the Court dismissing with leave to amend the 18 claim of IIED, Plaintiff’s Second Amended Complaint merely repeats the 19 allegations from his First Amended Complaint. ECF No. 27 at 18. Plaintiff asserts
20 1 that “Plaintiff has easily met the pleading threshold” for a claim of IIED by 2 pointing to specific instances of retaliation against him. ECF No. 29 at 5.
3 Plaintiff’s Second Amended Complaint contains additional allegations of 4 numerous adverse actions by the Department including internal investigations and 5 corresponding discipline, violations of his due process rights, and being
6 disqualified from taking the sergeant’s exam. Id. at 4 ¶ 5.17, 6-7 ¶¶ 5.26-5.32, 7- 7 11 ¶¶ 5.36-5.58. Yet such conduct does not rise to the level sufficient to support a 8 claim of IIED. 9 In Dicomes, the plaintiff alleged her employer intentionally prepared a false
10 report “for the sole purpose of embarrassing, humiliating and then terminating 11 [her].” 782 P.2d at 1013. The Washington State Supreme Court found that the 12 employer “discharge[ing] plaintiff by privately delivering a termination letter, and
13 briefly responding to media inquiries regarding the dismissal” could not “be 14 considered atrocious and intolerable in a civilized society.” Id. The Court also 15 noted that even if this conduct rose to the level of malice, it was not sufficient for a 16 claim of outrage. Id. (citing Restatement (Second) of Torts § 46, comment d
17 (1965)); see also Richards v. Healthcare Res. Grp., Inc., 131 F. Supp. 3d 1063, 18 1075 (E.D. Wash. 2015) (“Even assuming, in arguendo, that Defendants falsified 19 Plaintiff's initials with intent to create a false basis for discharging her,
20 under Dicomes, such conduct is insufficient as a matter of law to rise to the level of 1 being “atrocious, and utterly intolerable to a civilized community.”). Here, 2 Plaintiff does not allege any conduct by his employer that rises to the level of
3 falsifying reports to terminate him. 4 As Plaintiff has failed to allege a retaliation claim of IIED, the Court 5 dismisses this claim without leave to amend. See Cafasso, 637 F.3d at 1058.
6 2. Negligent Infliction of Emotional Distress (“NIED”) 7 In order to recover for NIED, a plaintiff must prove “negligence, that is 8 duty, breach of the standard of care, proximate cause, and damages, and prove[] 9 the additional requirement of objective symptomatology.” Strong v. Terrell, 195
10 P.3d 977, 982 (Wash. Ct. App. 2008) (citations omitted). NIED can be a 11 “cognizable claim in the workplace when it does not result from an employer’s 12 disciplinary acts or its response to a workplace ‘personality dispute.’” Id. at 982-
13 83 (quoting Chea v. Men’s Wearhouse, Inc., 932 P.2d 1261, 1263 (Wash Ct. App.), 14 amended on reconsideration in part, 971 P.2d 520 (Wash. Ct. App. 1997)). 15 Defendants assert that despite the Court dismissing with leave to amend the 16 claim of NIED, Plaintiff’s Second Amended Complaint merely repeats the
17 allegations from his First Amended Complaint. ECF No. 27 at 19. Plaintiff does 18 not address this argument but merely asserts, “NIED is pled in the alternative 19
20 1 based on Defendants’ negligent failure to maintain safe equipment and negligent 2 post-injury treatment.” ECF No. 29 at 5.7
3 Defendants are correct that Plaintiff’s Second Amended Complaint repeats 4 verbatim his allegations of NIED in the First Amended Complaint, compare ECF 5 No. 24 at 24 ¶¶ 6.22-6.23, with ECF No. 2 at 7 ¶¶ 6.22-6.23, which the Court
6 previously found insufficient to allege a prima facie NIED claim. 7 Thus, the Court dismisses this claim without leave to amend. See Cafasso, 8 637 F.3d at 1058. 9 CONCLUSION
10 For the reasons stated above, the Court grants Plaintiff’s Motion to Accept 11 Late Response and grants in part and denies in part Defendants’ Second Motion for 12 Partial Judgment on the Pleadings.
13 Accordingly, IT IS ORDERED: 14 1. Defendants’ Second Motion for Partial Judgment on the Pleadings, 15 ECF No. 27, is GRANTED in part and DENIED in part. 16 2. Plaintiff’s Motion to Accept Late Response, ECF No. 28, is
17 GRANTED. 18
7 The Court previously addressed that fact that Plaintiff may plead alternative 19 theories. ECF No. 23 at 26-27. 20 1 IT IS SO ORDERED. The District Court Executive is directed to file this 2 order and provide copies to the parties.
3 DATED January 6, 2026.
4 s/Mary K. Dimke MARY K. DIMKE 5 UNITED STATES DISTRICT JUDGE
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