1 2 UNITED STATES DISTRICT COURT 3 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 4 6 Plaintiff, C21-187 TSZ 7 v. ORDER 9 Defendant.
10 THIS MATTER comes before the Court on a motion to dismiss, docket no. 25, 11 brought by defendant The Boeing Company (“Boeing”) pursuant to Federal Rule of Civil 12 Procedure 12(b)(6). Having reviewed all papers filed in support of, and in opposition to, 13 the motion, the Court enters the following Order. 14 Background 15 Plaintiff Steven Gianesini commenced this action against Boeing in King County 16 Superior Court on February 12, 2021. See Compl. (docket no. 1-1). The only claim 17 asserted in the original complaint was for discrimination on the basis of national origin. 18 Id. at ¶ 4.2. After Boeing removed the action, plaintiff filed an amended complaint in 19 which he alleged various federal claims, as well as state law claims for discrimination on 20 the basis of both national origin and disability, wrongful discharge in violation of public 21 policy, and intentional infliction of emotional distress (“IIED” or outrage). See 1st Am. 22 Compl. at ¶¶ 4.1-4.70 (docket no. 10). 1 In May 2021, the Court granted Boeing’s motion to dismiss plaintiff’s amended 2 complaint, ruling that (i) the federal claims were precluded by plaintiff’s failure to timely
3 file a claim with the Equal Employment Opportunity Commission, (ii) the state law 4 claims alleging disability-based discrimination and failure to accommodate did not relate 5 back to the sole claim in the original complaint and, as a result, were time barred, and 6 (iii) even if timely pleaded, the state law claims for national origin discrimination, 7 wrongful discharge, and outrage did not sufficiently state plausible grounds for relief. 8 See Order (docket no. 23). The federal and disability-related claims were dismissed with
9 prejudice, but the other (state law) claims were dismissed without prejudice and with 10 leave to amend. See id. at 14-15. 11 On June 15, 2021, plaintiff filed a Second Amended Complaint, in which he 12 restated the allegations relating to his disabilities, namely hearing loss purportedly caused 13 by an infectious disease transmitted by a co-worker, as well as left-handedness. See 2d
14 Am. Compl. at ¶¶ 3.3-3.10, 3.12-3.20, 3.22-3.25, & 3.29 (docket no. 24).1 In his Second 15 Amended Complaint, plaintiff also repleaded his state law claims for national origin 16 discrimination, wrongful discharge, and outrage, describing as predicates for those claims 17 the following adverse employment and/or harassing actions: 18 • in 2017, removing plaintiff as SharePoint administrator, id. at ¶¶ 3.32 & 4.5;
19 • in 2017 or later, failing to promote plaintiff, id. at ¶¶ 3.32, 3.33, 4.5, & 4.6; 20 21 1 Boeing moves to strike these allegations pursuant to Federal Rule of Civil Procedure 12(f). Plaintiff concedes the merit of Boeing’s Rule 12(f) motion as to all but Paragraphs 3.13 and 22 3.23-3.25. See Resp. at 25 (docket no. 26). 1 • on December 9, 2017, excluding plaintiff from the list for updating security clearances, as a result of which plaintiff confirmed on February 14, 2018, that 2 his security clearance would not be renewed, id. at ¶¶ 3.21, 3.31, 4.4, 4.11, 4.20, & 4.21; 3 • on January 24, 2018, finding “unfounded” plaintiff’s complaint about John 4 Schultz’s comment, “You know how those Italians are, you gotta get em while their [sic] weak,” which was allegedly made on January 5, 2018, id. at ¶¶ 3.26, 5 3.27, & 4.20; see also id. at ¶¶ 3.11 & 3.13 (accusing Schultz of using the term “Polish salute” and of calling plaintiff a “liar”); and 6 • on or after July 14, 2018, declining to rehire plaintiff after Jay Galloway 7 commented that plaintiff would likely get the job unless he was “blackballed or something,” id. at ¶¶ 3.39 & 4.8. 8 Boeing moves to dismiss plaintiff’s claims as either barred by the applicable statute of 9 limitations or insufficiently pleaded. 10 Discussion 11 A complaint might be lacking because it fails to state a cognizable legal theory or 12 because it fails to state sufficient facts under a cognizable legal theory. See Robertson v. 13 Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). A claim that is time 14 barred is not cognizable. Each of plaintiff’s state law claims are subject to a three-year 15 limitations period. See Order at 7 (docket no. 23) (citing RCW 4.16.080(2); Antonius v. 16 King County, 153 Wn.2d 256, 261-62, 103 P.3d 729 (2004); Barnett v. Sequim Valley 17 Ranch, LLC, 174 Wn. App. 475, 485, 302 P.3d 500 (2013); Cox v. Oasis Physical 18 Therapy, PLLC, 153 Wn. App. 176, 192, 222 P.3d 119 (2009)). Because plaintiff 19 initiated this action on February 12, 2021, the conduct giving rise to plaintiff’s claims 20 must have occurred on or after February 12, 2018. Plaintiff admits that any claims based 21 on (i) his removal as SharePoint administrator in 2017, (ii) the failure to promote him in 22 1 2017, or (iii) the January 2018 decision concerning John Schultz’s derogatory comments 2 are untimely. See Resp. at 16-17 (docket no. 26). Those claims are DISMISSED with
3 prejudice. 4 With respect to plaintiff’s exclusion from the list for updating security clearances, 5 which also occurred outside the limitations period, plaintiff argues that his claim is timely 6 because it was brought within three years after he confirmed his security clearance would 7 not be renewed and he resigned. Plaintiff’s analysis is flawed. According to his own 8 pleading, the adverse employment action at issue occurred on December 9, 2017, and
9 neither his confirmation concerning the consequences of the adverse action nor his 10 resignation in light of such consequences reset the clock for purposes of bringing this 11 lawsuit. To the extent plaintiff’s remaining state law claims (i.e., disparate treatment, 12 disparate impact, hostile work environment, wrongful discharge, and outrage) are 13 premised on plaintiff’s exclusion from the list for updating security clearances, they are
14 DISMISSED with prejudice as time barred. 15 As to the decision not to rehire plaintiff, which appears to have been made within 16 the three years preceding plaintiff’s filing of this case, plaintiff has not sufficiently stated 17 a plausible claim of national-origin discrimination or outrage.2 At most, plaintiff’s 18 operative pleading alleges that he did not receive the job because he was blackballed.
19 Given that “blackball” means simply “to vote against” or “to exclude socially,” see 20 21 2 By definition, a refusal to hire cannot form the basis of a claim for wrongful discharge, and thus, plaintiff’s claim for wrongful discharge, which has no factual footing within the limitations 22 period, is DISMISSED with prejudice. 1 WEBSTER’S THIRD NEW INT’L DICTIONARY 225 (2002) [hereinafter “WEBSTER’S”],3 the 2 Second Amended Complaint does not even suggest that “a substantial factor” for the
3 adverse employment action was plaintiff’s national origin. See Mackay v. Acorn Custom 4 Cabinetry, Inc., 127 Wn.2d 302, 310, 898 P.2d 284 (1995) (adopting the “substantial 5 factor” standard); see also 6A WASH. PRAC., WPI 330.01 (7th ed. 2019) (setting forth the 6 elements of a disparate treatment claim).
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1 2 UNITED STATES DISTRICT COURT 3 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 4 6 Plaintiff, C21-187 TSZ 7 v. ORDER 9 Defendant.
10 THIS MATTER comes before the Court on a motion to dismiss, docket no. 25, 11 brought by defendant The Boeing Company (“Boeing”) pursuant to Federal Rule of Civil 12 Procedure 12(b)(6). Having reviewed all papers filed in support of, and in opposition to, 13 the motion, the Court enters the following Order. 14 Background 15 Plaintiff Steven Gianesini commenced this action against Boeing in King County 16 Superior Court on February 12, 2021. See Compl. (docket no. 1-1). The only claim 17 asserted in the original complaint was for discrimination on the basis of national origin. 18 Id. at ¶ 4.2. After Boeing removed the action, plaintiff filed an amended complaint in 19 which he alleged various federal claims, as well as state law claims for discrimination on 20 the basis of both national origin and disability, wrongful discharge in violation of public 21 policy, and intentional infliction of emotional distress (“IIED” or outrage). See 1st Am. 22 Compl. at ¶¶ 4.1-4.70 (docket no. 10). 1 In May 2021, the Court granted Boeing’s motion to dismiss plaintiff’s amended 2 complaint, ruling that (i) the federal claims were precluded by plaintiff’s failure to timely
3 file a claim with the Equal Employment Opportunity Commission, (ii) the state law 4 claims alleging disability-based discrimination and failure to accommodate did not relate 5 back to the sole claim in the original complaint and, as a result, were time barred, and 6 (iii) even if timely pleaded, the state law claims for national origin discrimination, 7 wrongful discharge, and outrage did not sufficiently state plausible grounds for relief. 8 See Order (docket no. 23). The federal and disability-related claims were dismissed with
9 prejudice, but the other (state law) claims were dismissed without prejudice and with 10 leave to amend. See id. at 14-15. 11 On June 15, 2021, plaintiff filed a Second Amended Complaint, in which he 12 restated the allegations relating to his disabilities, namely hearing loss purportedly caused 13 by an infectious disease transmitted by a co-worker, as well as left-handedness. See 2d
14 Am. Compl. at ¶¶ 3.3-3.10, 3.12-3.20, 3.22-3.25, & 3.29 (docket no. 24).1 In his Second 15 Amended Complaint, plaintiff also repleaded his state law claims for national origin 16 discrimination, wrongful discharge, and outrage, describing as predicates for those claims 17 the following adverse employment and/or harassing actions: 18 • in 2017, removing plaintiff as SharePoint administrator, id. at ¶¶ 3.32 & 4.5;
19 • in 2017 or later, failing to promote plaintiff, id. at ¶¶ 3.32, 3.33, 4.5, & 4.6; 20 21 1 Boeing moves to strike these allegations pursuant to Federal Rule of Civil Procedure 12(f). Plaintiff concedes the merit of Boeing’s Rule 12(f) motion as to all but Paragraphs 3.13 and 22 3.23-3.25. See Resp. at 25 (docket no. 26). 1 • on December 9, 2017, excluding plaintiff from the list for updating security clearances, as a result of which plaintiff confirmed on February 14, 2018, that 2 his security clearance would not be renewed, id. at ¶¶ 3.21, 3.31, 4.4, 4.11, 4.20, & 4.21; 3 • on January 24, 2018, finding “unfounded” plaintiff’s complaint about John 4 Schultz’s comment, “You know how those Italians are, you gotta get em while their [sic] weak,” which was allegedly made on January 5, 2018, id. at ¶¶ 3.26, 5 3.27, & 4.20; see also id. at ¶¶ 3.11 & 3.13 (accusing Schultz of using the term “Polish salute” and of calling plaintiff a “liar”); and 6 • on or after July 14, 2018, declining to rehire plaintiff after Jay Galloway 7 commented that plaintiff would likely get the job unless he was “blackballed or something,” id. at ¶¶ 3.39 & 4.8. 8 Boeing moves to dismiss plaintiff’s claims as either barred by the applicable statute of 9 limitations or insufficiently pleaded. 10 Discussion 11 A complaint might be lacking because it fails to state a cognizable legal theory or 12 because it fails to state sufficient facts under a cognizable legal theory. See Robertson v. 13 Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). A claim that is time 14 barred is not cognizable. Each of plaintiff’s state law claims are subject to a three-year 15 limitations period. See Order at 7 (docket no. 23) (citing RCW 4.16.080(2); Antonius v. 16 King County, 153 Wn.2d 256, 261-62, 103 P.3d 729 (2004); Barnett v. Sequim Valley 17 Ranch, LLC, 174 Wn. App. 475, 485, 302 P.3d 500 (2013); Cox v. Oasis Physical 18 Therapy, PLLC, 153 Wn. App. 176, 192, 222 P.3d 119 (2009)). Because plaintiff 19 initiated this action on February 12, 2021, the conduct giving rise to plaintiff’s claims 20 must have occurred on or after February 12, 2018. Plaintiff admits that any claims based 21 on (i) his removal as SharePoint administrator in 2017, (ii) the failure to promote him in 22 1 2017, or (iii) the January 2018 decision concerning John Schultz’s derogatory comments 2 are untimely. See Resp. at 16-17 (docket no. 26). Those claims are DISMISSED with
3 prejudice. 4 With respect to plaintiff’s exclusion from the list for updating security clearances, 5 which also occurred outside the limitations period, plaintiff argues that his claim is timely 6 because it was brought within three years after he confirmed his security clearance would 7 not be renewed and he resigned. Plaintiff’s analysis is flawed. According to his own 8 pleading, the adverse employment action at issue occurred on December 9, 2017, and
9 neither his confirmation concerning the consequences of the adverse action nor his 10 resignation in light of such consequences reset the clock for purposes of bringing this 11 lawsuit. To the extent plaintiff’s remaining state law claims (i.e., disparate treatment, 12 disparate impact, hostile work environment, wrongful discharge, and outrage) are 13 premised on plaintiff’s exclusion from the list for updating security clearances, they are
14 DISMISSED with prejudice as time barred. 15 As to the decision not to rehire plaintiff, which appears to have been made within 16 the three years preceding plaintiff’s filing of this case, plaintiff has not sufficiently stated 17 a plausible claim of national-origin discrimination or outrage.2 At most, plaintiff’s 18 operative pleading alleges that he did not receive the job because he was blackballed.
19 Given that “blackball” means simply “to vote against” or “to exclude socially,” see 20 21 2 By definition, a refusal to hire cannot form the basis of a claim for wrongful discharge, and thus, plaintiff’s claim for wrongful discharge, which has no factual footing within the limitations 22 period, is DISMISSED with prejudice. 1 WEBSTER’S THIRD NEW INT’L DICTIONARY 225 (2002) [hereinafter “WEBSTER’S”],3 the 2 Second Amended Complaint does not even suggest that “a substantial factor” for the
3 adverse employment action was plaintiff’s national origin. See Mackay v. Acorn Custom 4 Cabinetry, Inc., 127 Wn.2d 302, 310, 898 P.2d 284 (1995) (adopting the “substantial 5 factor” standard); see also 6A WASH. PRAC., WPI 330.01 (7th ed. 2019) (setting forth the 6 elements of a disparate treatment claim). 7 In this refusal-to-hire context, and in the absence of any direct evidence of 8 national-origin discrimination, to establish a prima facie case, plaintiff must show that
9 (i) he is a member of a protected class, (ii) he applied and was qualified for a job for 10 which Boeing sought candidates, (iii) he was rejected, and (iv) the position remained 11 open and Boeing continued to seek applicants with plaintiff’s qualifications. See 12 Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas Cnty., 189 Wn.2d 516, 529, 404 P.3d 464 13 (2017) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The
14 McDonnell Douglas standard allows a person who is “a member of a racial minority 15 group that has traditionally suffered workplace discrimination” to initially dispel two of 16 the most common reasons an employer might use to reject an applicant, namely “an 17 absolute or relative lack of qualifications” and “the absence of a vacancy in the job 18 sought.” See Perry v. Woodward, 199 F.3d 1126, 1139 (10th Cir. 1999) (quoting Int’l
19 Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977)); see also Mikkelsen, 20 21 3 The term “blackball” originated from the practice of “casting an adverse vote” against a person’s membership in an organization by “putting a black ball into a ballot box or urn.” 22 WEBSTER’S at 225. 1 189 Wn.2d at 531-32 (citing Perry). The Second Amended Complaint does not contain 2 the factual allegations necessary to state a prima facie case under the McDonnell Douglas
3 test, and Boeing’s Rule 12(b)(6) motion is GRANTED in part as to plaintiff’s claim that 4 Boeing refused to rehire him because of his national origin. 5 The Second Amended Complaint also fails to articulate the type of “extreme and 6 outrageous conduct” required to state an outrage claim. See Snyder v. Med. Serv. Corp. 7 of E. Wash., 145 Wn.2d 233, 242, 35 P.3d 1158 (2001). Moreover, even if plaintiff could 8 identify a Boeing employee who, in connection with plaintiff’s application for rehiring,
9 engaged in the type of “atrocious” and “utterly intolerable” behavior that would support 10 an IIED claim, plaintiff could not proceed against Boeing on a respondeat superior theory 11 because such intentionally tortious behavior cannot form the basis of vicarious liability 12 on the part of an employer. Id. at 242-43. Plaintiff’s outrage claim is DISMISSED with 13 prejudice.
14 Plaintiff’s attorney states that she intended, but failed, to include the following 15 language in the Second Amended Complaint: “upon information and belief Boeing had 16 hired a similarly qualified person in place of Plaintiff during the July 2018 application to 17 re-hire.” See Jones Decl. at ¶ 2 (docket no. 27). Counsel’s declaration is treated as a 18 request for leave to again amend the operative pleading, and such motion is GRANTED
19 as follows. Plaintiff may electronically file a Third Amended Complaint within fourteen 20 (14) days of the date of this Order. Such pleading shall be limited to asserting a state law 21 claim of discrimination on the basis of national origin with respect to plaintiff’s July 14, 22 2018, application for employment. The revised complaint shall not repeat or recite any 1 allegations that relate to claims already dismissed with prejudice. Plaintiff and his lawyer 2 are REMINDED of their obligations under Federal Rule of Civil Procedure 11. If a Third
3 Amended Complaint is not timely filed, the Court will enter judgment in favor of Boeing 4 and against plaintiff. With regard to any amended pleading, the deadlines set forth in 5 Federal Rule of Civil Procedure 15(a)(3) shall apply. 6 Conclusion 7 For the foregoing reasons, the Court ORDERS: 8 (1) Boeing’s motion to dismiss, docket no. 25, is GRANTED in part and
9 DENIED in part. All claims set forth in plaintiff’s Second Amended Complaint, docket 10 no. 24, are DISMISSED with prejudice, EXCEPT for plaintiff’s claim under the 11 Washington Law Against Discrimination alleging that he was not rehired because of his 12 national origin, which is DISMISSED without prejudice and with leave to amend within 13 fourteen (14) days of the date of this Order.
14 (2) Boeing’s motion, docket no. 25, to strike portions of the Second Amended 15 Complaint pursuant to Rule 12(f), and Boeing’s motion, see Reply at 12 (docket no. 29), 16 to strike certain extrinsic evidence, are DENIED as moot. 17 (3) The Clerk is directed to send a copy of this Order to all counsel of record.
19 Dated this 10th day of August, 2021. 20 A 21 Thomas S. Zilly 22 United States District Judge