5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE
7 QUINTE HARRIS, an individual, CASE NO. C22-555RSM 8 Plaintiff, ORDER GRANTING MOTION TO 9 DISMISS WITH LEAVE TO v. AMEND 10 SKANSKA USA BUILDING INC., 11 SKANSKA BALFOUR BEATTY JV, MICROSOFT CORPORATION, and 12 BALFOUR BEATTY CONSTRUCTION, corporations, 13 Defendants. 14 I. INTRODUCTION 15 This matter comes before the Court on Defendant Microsoft’s Motion to Dismiss under 16 Rule 12(b)(6). Dkt. #23. Plaintiff Quinte Harris opposes the Motion. Dkt. #31. The Court has 17 determined oral argument is unnecessary. For the reasons stated below, the Court GRANTS 18 Defendant’s Motion and dismisses Plaintiff’s claims with leave to amend. 19 II. BACKGROUND1 20 Plaintiff Quinte Harris is a 47-year-old African American man. See Dkt. #22 at 3. In 21 April 2021, Mr. Harris was hired as a journeyman laborer to work at Microsoft’s Redmond 22 23 1 Except as otherwise noted, the following background facts are taken from Plaintiff’s Complaint, Dkt. #22, and 24 accepted as true for purposes of ruling on this Motion to Dismiss. 1 campus modernization construction site. Id. at 5. He was hired directly through a joint venture between Balfour Beatty Construction (“Balfour Beatty”) and Skanska USA Building, Inc. 2 (“Skanska”). Id. Plaintiff alleges, without further detail, that Defendant Microsoft retained some 3 control over its Redmond campus jobsite. Id. at 6. On or about May 12, 2021, Mr. Harris became 4 aware of racial hostility from certain white construction workers. Id. at 7. The details of this 5 hostility, though pled, are not relevant to the instant motion. Mr. Harris tried pursuing the proper 6 channels to report the racism and discrimination experienced. Id. Nothing was done to address 7 the discrimination claims and Mr. Harris faced subsequent retaliation. Id. at 10. He continued to 8 face interference with his work through September 2021. Id. He then sat down for a public 9 interview with a local journalist on October 22, 2021. Id. at 11. Given the nature of the interview, 10 Microsoft was on notice about Mr. Harris’s allegations. Id. Conditions continued to deteriorate 11 for Mr. Harris at work through November 2021. Id. at 13. Finally on January 7, 2022, Mr. Harris 12 was terminated from his job. Id. Mr. Harris then filed suit, bringing several claims 13 (discrimination, retaliation, wrongful termination, negligence, and breach of contract) against all 14 Defendants. Id. 15 Defendants Skanska and Balfour Beatty do not oppose the relief requested by Microsoft 16 in its Motion to Dismiss. See Dkt. #30. 17 III. DISCUSSION 18 A. Legal Standard under Rule 12(b)(6) 19 In making a 12(b)(6) assessment, the court accepts all facts alleged in the complaint as 20 true, and makes all inferences in the light most favorable to the non-moving party. Baker v. 21 Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted). 22 However, the court is not required to accept as true a “legal conclusion couched as a factual 23 allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 24 1 U.S. 544, 555 (2007)). The complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678. This requirement is met when 2 the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the 3 defendant is liable for the misconduct alleged.” Id. The complaint need not include detailed 4 allegations, but it must have “more than labels and conclusions, and a formulaic recitation of the 5 elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Absent facial plausibility, 6 a plaintiff’s claims must be dismissed. Id. at 570. 7 Where a complaint is dismissed for failure to state a claim, “leave to amend should be 8 granted unless the court determines that the allegation of other facts consistent with the challenged 9 pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 10 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). 11 B. Unlawful Employment Discrimination, Retaliation, and Wrongful Termination 12 Claims (Claims I, II, III and IV)
13 Defendant argues that under Title VII and RCW 49.60.180 Microsoft is not considered to 14 be Plaintiff’s employer, rendering Harris’s claims for unlawful employment discrimination, 15 retaliation, and wrongful termination futile. See Dkt. #23 at 4-5. 16 For any of these four claims to be valid, an employer-employee relationship must exist 17 between Harris and Microsoft. See Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th 18 Cir. 1980). Common-law agency principles are used to analyze whether an employer-employee 19 relationship exists under Title VII. See EEOC v. Global Horizons, Inc., 915 F.3d 631, 637 (9th 20 Cir. 2019). “Under the common-law test, the ‘principal guidepost’ is the element of control— 21 that is, ‘the extent of control that one may exercise over the details of the work of the other.’” Id. 22 at 638 (quoting Clackamas Gastroenterology Assocs., P.C. v. Wells, 438 U.S. 440, 448 (2003)). 23 Similarly, courts in Washington assess the “right to control the manner of doing the work 24 1 involved” to determine whether an employer-employee relationship exists under RCW 49.60.180. See DeWater v. State, 130 Wn.2d 128, 140, 921 P.2d 1059, 1065 (1996). 2 Plaintiff alleges that Microsoft is liable here because it was the landowner. See Dkt. #22 3 at 18-19. He also asserts that because Skanska and Balfour Beatty were acting as Microsoft’s 4 agents, managing its property during construction, Microsoft is liable for their unlawful conduct 5 under the doctrine of respondeat superior. See Dkt. #31 at 7 (quoting Burlington Indus., Inc. v. 6 Ellerth, 524 U.S. 742, 764 (1998)).2 The Court disagrees with both theories of liability. Plaintiff 7 has not pled that Microsoft was an employer, or had any control over Harris’s employment, details 8 or manner of his work. While courts can also look to agency law principles to determine whether 9 someone is an employer under Title VII, Plaintiff has not pled sufficient facts to show there is a 10 principal/agent connection between Microsoft and Harris. Anderson v. Pac. Maritime Ass’n, 336 11 F.3d 924, 930 (9th Cir. 2003) (this connection is required for a claim to fall under Title VII). This 12 alone is dispositive. 13 Consequently, the remaining claims cannot be proven because “[a]n action for wrongful 14 discharge depends, by definition, upon termination of employment.” See Awana v. Port of 15 Seattle, 121 Wn. App. 429, 432, 89 P.3d 291, 292 (2004). Since Plaintiff has not shown 16 Defendant Microsoft owed him a duty in the first place (as there is no employer-employee 17 relationship), any arguments related to nondelegable duties against discrimination, retaliation, or 18 unlawful termination are irrelevant. Accordingly, Plaintiff’s claims I, II, III, and IV are properly 19 dismissed against this Defendant. 20 C. Common-Law Duty (Claims V and VII) 21
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5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE
7 QUINTE HARRIS, an individual, CASE NO. C22-555RSM 8 Plaintiff, ORDER GRANTING MOTION TO 9 DISMISS WITH LEAVE TO v. AMEND 10 SKANSKA USA BUILDING INC., 11 SKANSKA BALFOUR BEATTY JV, MICROSOFT CORPORATION, and 12 BALFOUR BEATTY CONSTRUCTION, corporations, 13 Defendants. 14 I. INTRODUCTION 15 This matter comes before the Court on Defendant Microsoft’s Motion to Dismiss under 16 Rule 12(b)(6). Dkt. #23. Plaintiff Quinte Harris opposes the Motion. Dkt. #31. The Court has 17 determined oral argument is unnecessary. For the reasons stated below, the Court GRANTS 18 Defendant’s Motion and dismisses Plaintiff’s claims with leave to amend. 19 II. BACKGROUND1 20 Plaintiff Quinte Harris is a 47-year-old African American man. See Dkt. #22 at 3. In 21 April 2021, Mr. Harris was hired as a journeyman laborer to work at Microsoft’s Redmond 22 23 1 Except as otherwise noted, the following background facts are taken from Plaintiff’s Complaint, Dkt. #22, and 24 accepted as true for purposes of ruling on this Motion to Dismiss. 1 campus modernization construction site. Id. at 5. He was hired directly through a joint venture between Balfour Beatty Construction (“Balfour Beatty”) and Skanska USA Building, Inc. 2 (“Skanska”). Id. Plaintiff alleges, without further detail, that Defendant Microsoft retained some 3 control over its Redmond campus jobsite. Id. at 6. On or about May 12, 2021, Mr. Harris became 4 aware of racial hostility from certain white construction workers. Id. at 7. The details of this 5 hostility, though pled, are not relevant to the instant motion. Mr. Harris tried pursuing the proper 6 channels to report the racism and discrimination experienced. Id. Nothing was done to address 7 the discrimination claims and Mr. Harris faced subsequent retaliation. Id. at 10. He continued to 8 face interference with his work through September 2021. Id. He then sat down for a public 9 interview with a local journalist on October 22, 2021. Id. at 11. Given the nature of the interview, 10 Microsoft was on notice about Mr. Harris’s allegations. Id. Conditions continued to deteriorate 11 for Mr. Harris at work through November 2021. Id. at 13. Finally on January 7, 2022, Mr. Harris 12 was terminated from his job. Id. Mr. Harris then filed suit, bringing several claims 13 (discrimination, retaliation, wrongful termination, negligence, and breach of contract) against all 14 Defendants. Id. 15 Defendants Skanska and Balfour Beatty do not oppose the relief requested by Microsoft 16 in its Motion to Dismiss. See Dkt. #30. 17 III. DISCUSSION 18 A. Legal Standard under Rule 12(b)(6) 19 In making a 12(b)(6) assessment, the court accepts all facts alleged in the complaint as 20 true, and makes all inferences in the light most favorable to the non-moving party. Baker v. 21 Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted). 22 However, the court is not required to accept as true a “legal conclusion couched as a factual 23 allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 24 1 U.S. 544, 555 (2007)). The complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678. This requirement is met when 2 the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the 3 defendant is liable for the misconduct alleged.” Id. The complaint need not include detailed 4 allegations, but it must have “more than labels and conclusions, and a formulaic recitation of the 5 elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Absent facial plausibility, 6 a plaintiff’s claims must be dismissed. Id. at 570. 7 Where a complaint is dismissed for failure to state a claim, “leave to amend should be 8 granted unless the court determines that the allegation of other facts consistent with the challenged 9 pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 10 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). 11 B. Unlawful Employment Discrimination, Retaliation, and Wrongful Termination 12 Claims (Claims I, II, III and IV)
13 Defendant argues that under Title VII and RCW 49.60.180 Microsoft is not considered to 14 be Plaintiff’s employer, rendering Harris’s claims for unlawful employment discrimination, 15 retaliation, and wrongful termination futile. See Dkt. #23 at 4-5. 16 For any of these four claims to be valid, an employer-employee relationship must exist 17 between Harris and Microsoft. See Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th 18 Cir. 1980). Common-law agency principles are used to analyze whether an employer-employee 19 relationship exists under Title VII. See EEOC v. Global Horizons, Inc., 915 F.3d 631, 637 (9th 20 Cir. 2019). “Under the common-law test, the ‘principal guidepost’ is the element of control— 21 that is, ‘the extent of control that one may exercise over the details of the work of the other.’” Id. 22 at 638 (quoting Clackamas Gastroenterology Assocs., P.C. v. Wells, 438 U.S. 440, 448 (2003)). 23 Similarly, courts in Washington assess the “right to control the manner of doing the work 24 1 involved” to determine whether an employer-employee relationship exists under RCW 49.60.180. See DeWater v. State, 130 Wn.2d 128, 140, 921 P.2d 1059, 1065 (1996). 2 Plaintiff alleges that Microsoft is liable here because it was the landowner. See Dkt. #22 3 at 18-19. He also asserts that because Skanska and Balfour Beatty were acting as Microsoft’s 4 agents, managing its property during construction, Microsoft is liable for their unlawful conduct 5 under the doctrine of respondeat superior. See Dkt. #31 at 7 (quoting Burlington Indus., Inc. v. 6 Ellerth, 524 U.S. 742, 764 (1998)).2 The Court disagrees with both theories of liability. Plaintiff 7 has not pled that Microsoft was an employer, or had any control over Harris’s employment, details 8 or manner of his work. While courts can also look to agency law principles to determine whether 9 someone is an employer under Title VII, Plaintiff has not pled sufficient facts to show there is a 10 principal/agent connection between Microsoft and Harris. Anderson v. Pac. Maritime Ass’n, 336 11 F.3d 924, 930 (9th Cir. 2003) (this connection is required for a claim to fall under Title VII). This 12 alone is dispositive. 13 Consequently, the remaining claims cannot be proven because “[a]n action for wrongful 14 discharge depends, by definition, upon termination of employment.” See Awana v. Port of 15 Seattle, 121 Wn. App. 429, 432, 89 P.3d 291, 292 (2004). Since Plaintiff has not shown 16 Defendant Microsoft owed him a duty in the first place (as there is no employer-employee 17 relationship), any arguments related to nondelegable duties against discrimination, retaliation, or 18 unlawful termination are irrelevant. Accordingly, Plaintiff’s claims I, II, III, and IV are properly 19 dismissed against this Defendant. 20 C. Common-Law Duty (Claims V and VII) 21
22 23 2 This case is not factually on point here as it stood for the proposition that an employer was liable to one employee 24 for the conduct of another employee. 1 Plaintiff next alleges that Microsoft was negligent in its supervision of Skanska and Balfour Beatty and in failing to correct a hostile work environment. See Dkt. #22 at 23-24. He 2 further asserts that Microsoft is liable for negligent acts of its agents. Id. Similar to the previous 3 claims, Defendant argues that it did not owe Plaintiff any duty. See Dkt. #23 at 10 (quoting 4 Vargas v. Inland Washington, LLC, 194 Wn.2d 720, 724, 452 P.3d 1205, 1209 (2019) (“To prove 5 negligence, [Plaintiff] must show the existence of a duty, breach of the duty, and injury to plaintiff 6 proximately caused by the breach.”)). Furthermore, Defendant asserts that retention of control is 7 a prerequisite to finding any common-law duty of negligence. See Dkt. #34 at 5-6 (quoting 8 Eylander v. Prologis Targeted U.S. Logistics Fund, 513 P.3d 834, 836 (Wash. Ct. App. 2022). In 9 response, Plaintiff asserts that Microsoft was on notice about the discrimination and hostility 10 Harris was encountering. See Dkt. #31 at 9-10. Thus, he argues, Microsoft’s involvement in the 11 culture of the worksite is a “believable inference” that it owed a duty to intervene and alleviate 12 the alleged discrimination. Id. at 6. 13 The Court agrees with Microsoft that Plaintiff has not pled sufficient facts here. Plaintiff has 14 not alleged that Microsoft engaged in any discrimination itself. Furthermore, Plaintiff has failed 15 to allege any facts showing that Microsoft retained any control over the manner of work on the 16 job site or that Harris was injured within the scope of that control.3 See Farias v. Port Blakely 17 Co., 22 Wn. App. 2d 467, 473, 512 P.3d 574, 581 (2022). Finally, Plaintiff has failed to provide 18 any authority to back up his assertions that being on notice about discrimination constitutes a duty 19 20 21 3 Plaintiff asserts that whether Microsoft retained any control is a question of fact and should be left to the trier of fact. See Dkt. #31 at 9. However, Plaintiff has not pled enough facts thus far that allows the Court to draw reasonable 22 inferences that Defendant is liable here for the misconduct alleged. Absent facial plausibility, a plaintiff’s claims must be dismissed. 23 24 1 or liability on behalf of a landowner or client of construction company without more factual support. Thus, Plaintiff’s negligence claims (Claims V and VII) are also properly dismissed. 2 D. Third-Party Beneficiary (Claims VI and VIII) 3 Defendants argue that Harris has failed to allege he had any contractual relationship with 4 Microsoft, and thus cannot enforce a valid breach of contract claim or be entitled to relief under 5 42 U.S.C. § 1981. See Dkt. #23 at 12-14. Under the statute, a claim “must initially identify an 6 impaired ‘contractual relationship,’ under which the plaintiff has rights.” Domino’s Pizza, Inc. v. 7 McDonald, 546 U.S. 470, 476 (2006) (quoting 42 U.S.C. §191(b)). While a third-party 8 beneficiary may be able to bring a section 1981 claim, Plaintiff has failed to allege he is such a 9 beneficiary. Plaintiff does not cite to any provisions in Microsoft’s contract with Skanska and 10 Balfour Beatty, but simply asserts that he was “an intended third party beneficiary” of that 11 contract as implied by its terms. See Dkt. #31 at 11-12 (noting “as [a] worker on the jobsite, [he] 12 was a natural beneficiary of the” contract). The Court disagrees. This principle has been rejected 13 by Washington courts. These courts have “recognized that a party must be intended as a third 14 party beneficiary to benefit from a contract,” and that “[a]n employee is not automatically 15 considered a third party beneficiary covered by an employer’s contract.” See Minton v. Ralston 16 Purina Co., 146 Wn.2d 385, 47 P.3d 556 (2002). Accordingly, Plaintiff’s claims VI and VIII are 17 properly dismissed. 18 E. Leave to Amend 19 A “court should freely give leave [to amend] when justice so requires,” Fed. R. Civ. P. 20 15(a)(2). Courts apply this policy with “extreme liberality.” Eminence Capital, LLC v. Aspeon, 21 Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). Five factors are commonly used to assess the propriety 22 of granting leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) 23 futility of amendment, and (5) whether plaintiff has previously amended the complaint. Allen v. 24 1 City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990); Foman v. Davis, 371 U.S. 178, 182 (1962). In conducting this five-factor analysis, the court must grant all inferences in favor of 2 allowing amendment. Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999). In 3 addition, the court must be mindful of the fact that, for each of these factors, the party opposing 4 amendment has the burden of showing that amendment is not warranted. DCD Programs, Ltd. 5 v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987); see also Richardson v. United States, 841 F.2d 6 993, 999 (9th Cir. 1988). 7 The Court finds that the above deficiencies with the Complaint can possibly be cured by 8 amendment. There has been no evidence of undue delay or bad faith. Defendant has failed to 9 show that any amendment would be futile. Prejudice to Defendant if amendment is permitted 10 will be minimal. Weighing all of the above factors, leave to amend will be granted. 11 IV. CONCLUSION 12 Having reviewed the relevant pleadings and the remainder of the record, the Court hereby 13 finds and ORDERS that Defendant Microsoft’s Motion to Dismiss Plaintiff’s Complaint under 14 Rule 12(b)(6), Dkt. #23, is GRANTED. Plaintiff’s claims are DISMISSED with leave to amend. 15 Plaintiff shall have thirty (30) days to file an amended complaint. If Plaintiff fails to do so, 16 Microsoft will be removed as a Defendant in this case. 17 DATED this 3rd day of November 2022. 18 19 A 20 RICARDO S. MARTINEZ 21 UNITED STATES DISTRICT JUDGE 22 23 24