Jones v. State of Washington Department of Employment Security

• Court: District Court, W.D. Washington
• Decided: February 12, 2025
• Docket: 3:24-cv-05322
• Status: Unknown

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 WAYNE CARROL JONES, CASE NO. 3:24-cv-05322-DGE 11 Plaintiff, ORDER GRANTING MOTION TO 12 v. DISMISS (DKT. NO. 15) AND GRANTING LEAVE TO AMEND 13 WASHINGTON DEPARTMENT OF EMPLOYMENT SECURITY et al., 14 Defendants. 15 16 Presently before the Court is Defendants’ motion to dismiss Plaintiff’s complaint for lack 17 of subject matter jurisdiction and for failure to state a claim. (Dkt. No. 15.) For the reasons 18 discussed below, Defendants’ motion is GRANTED, but Plaintiff is granted leave to amend as 19 identified herein. 20

24 1 I. FACTUAL AND PROCEDURAL BACKGROUND

2 The following facts are drawn from Plaintiff’s complaint, which the Court accepts as true 3 for purposes of considering the motion to dismiss.1 Plaintiff Wayne Carrol Jones was employed 4 by the Washington State Employment Security Department (“ESD”) as a Paid Family and 5 Medical Leave Specialist.2 (Dkt. No. 3 at 7.) Plaintiff’s duties included processing claims and 6 communications under Washington’s Paid Family and Medical Leave Program. (Id.) Plaintiff 7 asserts that on August 3, 2022, he requested accommodations for his visual impairments, such as 8 better visual aids and training for reading “blurred” documents. (Id. at 5.) Plaintiff states that 9 after requesting these accommodations he experienced a “severe mental breakdown” due to 10 “inadequate support and dismissive behavior” from the defendants. (Id.) 11 Plaintiff further asserts that after returning from a period of Family and Medical Leave 12 Act (“FMLA”) due to his father’s death, he faced “increased scrutiny, a shift in job duties 13 without adequate training, and harassment concerning his use of FMLA leave.” (Id.) Plaintiff 14 states that, during the period between May 8, 2023 and July 27, 2023 he was “placed in work

15 scenarios that were inadequately supported, leading to repeated denials of accommodation 16 requests and eventual wrongful termination.” (Id.) 17 Plaintiff asserts that on July 21, 2023, he was terminated from his position “under 18 circumstances that involved direct decisions or approvals by all defendants.” (Id.) Plaintiff 19

20 1 The Court also relies on various documents attached to the complaint and referenced in the complaint. “When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers 21 evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A 22 court may, however, consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without 23 converting the motion to dismiss into a motion for summary judgment.” Id. at 908. 2 Plaintiff’s complaint is unclear concerning precisely when he began working at ESD. 24 1 argues he was terminated from his position “under the pretext of performance issues”, but that 2 his termination was actually “a direct result of his disability, use of FMLA leave, and the 3 resultant complaints about his treatment and lack of accommodations.” (Id. at 8.) Plaintiff 4 contends he was provided misleading and incomplete information during the termination 5 process, which impacted his ability to appeal or otherwise seek redress. (Id. at 5.) Plaintiff

6 claims Defendants issued separation letters containing inaccuracies and did not address 7 Plaintiff’s appeals correctly, hindering Plaintiff’s ability to secure new employment. (Id. at 5–6.) 8 On August 15, 2023, Plaintiff filed a charge of discrimination with the Equal 9 Employment Opportunity Commission (“EEOC”). (Id. at 9–10.) On January 29, 2024, Plaintiff 10 received a Notice of Right to Sue from the EEOC, advising him that he had 90 days to file a 11 lawsuit. (Dkt. No. 3-1.) On April 29, 2024, Plaintiff, proceeding pro se, filed a proposed 12 complaint with this Court, along with a motion for leave to proceed in forma pauperis (“IFP”). 13 (Dkt. No. 1.) On June 7, 2024, the Court granted Plaintiff’s motion to leave to proceed IFP. 14 (Dkt. No. 2.) Plaintiff filed a complaint with this Court the same day. (Dkt. No. 3.)

15 Plaintiff’s complaint asserts claims under the Americans with Disabilities Act (“ADA”), 16 the Family and Medical Leave Act (“FMLA”), and Washington’s Paid Family and Medical 17 Leave (“PFML”) law. (Id. at 3–4.) Plaintiff is suing ESD along with three of his former 18 colleagues, Carlos Barboza, Toni Bryant, and Brittney Dahl. (Id. at 4–5.) Plaintiff seeks 19 $300,000 in compensatory damages for lost wages, emotional distress, and medical expenses 20 “incurred as a result of the defendant's discriminatory and retaliatory actions.” (Id. at 11.) 21 Plaintiff seeks additional compensatory damages of $125,000 for emotional distress, “reflecting 22 the severe mental anguish, depression, and anxiety” Plaintiff has suffered “due to the hostile 23 work environment, wrongful termination, and ongoing discrimination.” (Id.) Plaintiff further 24 1 seeks $300,000 in punitive damages “as a deterrent against the egregious and malicious behavior 2 exhibited by the defendant.” (Id.) Finally, Plaintiff seeks reinstatement to his former position or 3 a comparable one, and asks the Court to order Defendants to implement training on 4 discrimination and retaliation for all managerial and human resources staff. (Id.) 5 On October 28, 2024, Defendants filed a motion to dismiss pursuant to Federal Rules of

6 Civil Procedure 12(b)(1)3 and 12(b)(6), arguing that Plaintiff’s claims are precluded by the 7 Eleventh Amendment to the United States Constitution. (Dkt. No. 15.) 8 II. SURREPLIES STRICKEN

9 As a preliminary matter, the Court strikes Plaintiff’s two surreplies, Dkt. Nos. 19 and 20. 10 Local Civil Rule 7(d)(4) sets for the briefing schedule for a motion to dismiss. A surreply is not 11 authorized. Accordingly, Dkt. Nos. 19 and 20 are STRICKEN. 12 III. LEGAL STANDARD

13 Federal Rule of Civil Procedure 12(b)(1) allows litigants to seek the dismissal of an 14 action for lack of subject matter jurisdiction. A motion to dismiss for lack of subject matter 15 jurisdiction can either attack the sufficiency of the pleadings on their face (a “facial attack”) or 16 may present affidavits or other evidence that contest the truth of the allegations in the pleadings. 17 Sullivan v. Ferguson, 636 F. Supp. 3d 1276, 1283 (W.D. Wash. 2022) (citing Wolfe v. 18 Strankman, 392 F.3d 358, 362 (9th Cir. 2004)). Where the moving party does not present 19 affidavits or other evidence challenging a plaintiff's factual allegations (e.g., a “factual attack”), 20 the court must accept all factual allegations in the complaint as true and must construe the 21 pleadings in the non-moving party's favor. Id. 22

3 “Although sovereign immunity is only quasi-jurisdictional in nature, Rule 12(b)(1) is still a 23 proper vehicle for invoking sovereign immunity from suit.” Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (collecting cases). 24 1 “Motions to dismiss brought under Rule 12(b)(6) may be based on either the lack of a 2 cognizable legal theory or the absence of sufficient facts alleged under such a theory.” Clift v. 3 United States Internal Revenue Serv., 214 F. Supp. 3d 1009, 1011 (W.D. Wash. 2016). In 4 reviewing 12(b)(6) motions, courts must accept factual allegations in the complaint as true and 5 construe the complaint in favor of the non-moving party. Ass’n for Los Angeles Deputy Sheriffs

6 v. Cnty. of Los Angeles, 648 F.3d 986, 991 (9th Cir. 2011). Courts also draw “all reasonable 7 inferences in favor of the plaintiff.” Id. However, [w]hile a complaint attacked by a Rule 8 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to 9 provide the grounds of his entitlement to relief requires more than labels and conclusions, and a 10 formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. 11 Twombly, 550 U.S. 544, 554–555 (2007) (internal citations omitted). “Factual allegations must 12 be enough to raise a right to relief above the speculative level, on the assumption that all the 13 allegations in the complaint are true (even if doubtful in fact).” Id. at 555. 14 IV. DISCUSSION

15 The Eleventh Amendment provides that “[t]he Judicial power of the United States shall 16 not be construed to extend to any suit in law or equity, commenced or prosecuted against one of 17 the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” 18 U.S. Const. amend. XI. The amendment “bars a citizen from bringing a suit against their own 19 state in federal court.” Micomonaco v. Washington, 45 F.3d 316, 319 (9th Cir. 1995) (citing 20 Hans v. Louisiana, 134 U.S. 1, 10 (1890)). “Eleventh Amendment immunity extends to state 21 departments, agencies, boards, and commissions, and to state employees acting in their official 22 23 24 1 capacity4 because a suit against them is regarded as a suit against the State itself.” Planned 2 Parenthood Ariz., Inc. v. Brnovich, 172 F. Supp. 3d 1075, 1086 (D. Ariz. 2016) (citing Will v. 3 Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)); see also In re Pegasus Gold Corp., 394 4 F.3d 1189, 1195 (9th Cir. 2005) (“[A]gencies of the state are immune from private damage 5 actions or suits for injunctive relief brought in federal court.”) (quotation and citation omitted).

6 “A plaintiff can overcome the Eleventh Amendment bar only if the state has consented to 7 waive its immunity or if Congress has abrogated the state's immunity.” Tron-Haukebo v. Wash. 8 State DOT, Case No. C23-5691JLR, 2023 WL 7183573, at *2 (W.D. Wash. Nov. 1, 2023) 9 (citing Micomonaco, 45 F.3d at 319). Generally, “Washington has not consented to waive its 10 Eleventh Amendment immunity to claims brought in federal court.” Id. at *2 (citing Rains v. 11 State, 674 P.2d 165, 170 (Wash. 1983) (“[T]he State cannot be sued in federal court because of 12 the Eleventh Amendment.”) Congress can abrogate a state’s immunity in federal court if it (1) 13 “makes its intention to abrogate unmistakably clear in the language of the statute” and (2) “acts 14 pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment.” Nev. Dep't of

15 Human Res. v. Hibbs, 538 U.S. 721, 726 (2003). 16 Defendants argue Plaintiff’s causes of action are precluded by Washington State’s 17 immunity under the Eleventh Amendment. (Dkt. No. 15 at 4.) Defendants contend the causes of 18 action brought under the federal statutes cited in Plaintiff’s complaint “have been specifically 19 found to be precluded by the Eleventh Amendment.” (Id. at 5.) Defendants further contend 20 Plaintiff’s cause of action arising under state law is also precluded by the Eleventh Amendment. 21 (Id.) In response, Plaintiff argues Congress has abrogated state sovereign immunity for claims of 22

23 4 Plaintiff does not appear to dispute his claims brought against ESD employees are brought against those individuals in their official capacities. 24 1 discrimination and failure to accommodate disabilities brought under the ADA and the FMLA. 2 (Dkt. No. 17 at 1.) Plaintiff also argues the Eleventh Amendment does not bar his claims for 3 prospective injunctive relief to ensure compliance with the ADA and the FMLA. (Id. at 2.) 4 A. ADA Claim

5 Citing the U.S. Supreme Court’s decision in Bd. of Trustees of Univ. of Alabama v. 6 Garrett, 531 U.S. 356, 360 (2001), Defendants argue that causes of action brought under the 7 employment provisions of the ADA are barred by the Eleventh Amendment. (Dkt. No. 15 at 5.) 8 In Garrett, the Supreme Court found suits brought against States for money damages under Title 9 I of the ADA, which addresses disability discrimination in employment, are barred by the 10 Eleventh Amendment. 531 U.S. at 360. 11 1. Title I 12 “Title I of the ADA enables individuals who have suffered employment discrimination 13 because of their disabilities to sue employers for damages and injunctive relief in federal court.” 14 Walsh v. Nevada Dep't of Human Res., 471 F.3d 1033, 1036 (9th Cir. 2006) (citing 42 U.S.C. §

15 12117(a)). While “State governments can invoke the Eleventh Amendment's guarantee of 16 sovereign immunity against Title I suits seeking money damages, [s]overeign immunity . . . does 17 not bar Title I suits against state officials for prospective injunctive and declaratory relief.” Id. 18 (internal citation omitted); see R.W. v. Columbia Basin Coll., 77 F.4th 1214, 1220 (9th Cir. 2023) 19 (under the Ex parte Young exception, the Eleventh Amendment does not bar an action seeking 20 prospective relief against a state official for a violation of federal law); Doe v. Lawrence 21 Livermore Nat'l Lab., 131 F.3d 836, 841 (9th Cir. 1997) (listing “overwhelming” support in 22 other circuits that “job reinstatement constitutes prospective injunctive relief”); Johnson v. 23 Madden, Case No. 3:22-cv-17910-MCR-HTC, 2023 WL 4060180 at *3 (N.D. Fla. June 19, 24 1 2023) (collecting cases and finding that reinstatement is prospective relief that fits squarely 2 within the Ex parte Young doctrine.). 3 Here, Plaintiff’s complaint seeks prospective injunctive relief, requesting reinstatement to 4 his former position or a comparable one and the implementation of training on discrimination 5 and retaliation for managerial and human resources staff. (Dkt. No. 3 at 11.)

6 Notwithstanding, Plaintiff’s request for injunctive relief must meet the applicable 7 pleading standards, specifically the “liberal system of ‘notice pleading’” provided for under the 8 Federal Rules of Civil Procedure. Leatherman v. Tarrant County Narcotics Intelligence & 9 Coordination Unit, 507 U.S. 163, 168 (1993). Federal Rule of Civil Procedure 8(a) requires a 10 complaint to contain only (1) a statement of jurisdiction, (2) “a short and plain statement of the 11 claim showing that the pleader is entitled to relief,” and (3) “a demand for judgment for the relief 12 the pleader seeks.” 13 A plaintiff’s complaint must give the defendant fair notice of the grounds upon which the 14 plaintiff’s claim for prospective injunctive relief rests. See Walsh, 471 F.3d at 1036 (Plaintiff’s

15 single reference to injunctive relief “to force the defendant to adopt and enforce lawful policies 16 regarding discrimination based on disability” was insufficient because it was “unsupported by 17 any facts or allegations regarding [defendant’s] failure to adopt or enforce discrimination 18 policies” and because plaintiff made no assertions that the discrimination she suffered “was 19 caused by the failure to enforce a state policy, or that such discrimination could be cured by an 20 official policy.”). 21 To support a claim for prospective injunctive relief, Plaintiff’s complaint must plead 22 sufficient facts to establish a violation of the ADA under a cognizable legal theory. Construing 23 Plaintiff’s complaint liberally, it appears he seeks to set forth discrimination and retaliation 24 1 claims under Title I of the ADA as support for his request for prospective relief. Entler v. 2 Gregoire, 872 F.3d 1031, 1038 (9th Cir. 2017) (A pro se complaint must be liberally construed, 3 since a pro se complaint, “however inartfully pleaded, must be held to less stringent standards 4 than formal pleadings drafted by lawyers.”) (quoting Erickson v. Pardus, 551 U.S. 89, 94 5 (2007)).

6 To state a claim for discrimination under Title I of the ADA, a plaintiff must allege he is: 7 (1) disabled under the ADA, (2) a “qualified individual with a disability”, and (3) discriminated 8 against “because of” the disability. Bates v. United Parcel Serv., Inc., 511 F.3d 974, 988 (9th 9 Cir. 2007). To state claim for retaliation under Title I of the ADA, a plaintiff must allege: “(1) 10 involvement in a protected activity, (2) an adverse employment action, and (3) a causal link 11 between the two.” Coons v. Secretary of United States Dep't of Treasury, 383 F.3d 879, 887 (9th 12 Cir. 2004) (quoting Brown v. City of Tuscon, 336 F.3d 1181, 1187 (9th Cir. 2003)). 13 Plaintiff’s complaint provides insufficient facts concerning the incidents involved to 14 adequately state a claim under Title I of the ADA. For example, Plaintiff asserts he requested

15 and was denied specific accommodations for his known disabilities but does not identify the type 16 or scope of the claimed disabilities, what accommodation was requested, to whom the request 17 was made, when the request was made, how Defendant responded to the request, etcetera. 18 Similarly, Plaintiff asserts “the evidence suggests that his termination was a direct result of his 19 disability” (Dkt. No. 3 at 8) but does not identify the “evidence” relied upon.5 Absent the 20 assertion of specific facts, Plaintiff’s conclusory statements are insufficient. 21 22

5 Plaintiff attaches various screen shots of text messages and other communications, but they do 23 not identify facts sufficient to support a claim for discrimination or retaliation as they make no reference to any disability or accommodation request. 24 1 Accordingly, Defendants’ motion to dismiss as to any claim for damages under Title I of 2 the ADA is GRANTED. However, Plaintiff may file an amended complaint to identify and 3 allege facts that may support his claim for prospective relief no later than 30 days from the date 4 of this order. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must 5 be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is

6 absolutely clear that the deficiencies of the complaint could not be cured by amendment.”) 7 2. Title II 8 Title II of the ADA provides that “no qualified individual with a disability shall, by 9 reason of such disability, be excluded from participation in or be denied the benefits of the 10 services, programs, or activities of a public entity, or be subjected to discrimination by any such 11 entity.” 42 U.S.C. § 12132. Congress, in enacting Title II, “unequivocally expressed an intent to 12 abrogate state sovereign immunity.” Kohn v. State Bar of Cal., 119 F.4th 693, 696 (9th Cir. 13 2024) ((citing 42 U.S.C. § 12202 (“A State shall not be immune under the eleventh amendment 14 to the Constitution of the United States from an action in [a] Federal or State court of competent

15 jurisdiction for a violation of this chapter.”)); United States v. Georgia, 546 U.S. 151, 154 (2006) 16 (describing § 12202 as an “unequivocal expression of Congress's intent to abrogate state 17 sovereign immunity”). 18 However, Title II applies not to the “inputs” of a public agency, such as employment, but 19 with “outputs,” including a public agency’s services, programs, [and] activities.” Zimmerman v. 20 State Dept. of Justice, 170 F.3d 1169, 1174 (9th Cir. 1999). This is because “the structure of the 21 ADA as a whole unambiguously demonstrates that Congress did not intend for Title II to apply 22 to employment.” Id. at 1176; see also Armstrong v. Schwarzenegger, 622 F.3d 1058, 1067 n.2 23 (9th Cir. 2010) (citing Zimmerman, 170 F.3d at 1176) (“Title I of the ADA, entitled 24 1 ‘Employment,’ deals extensively with employment, and regulating employment under Title II 2 would both render Title I redundant and eviscerate its procedural requirements.”). . 3 Plaintiff’s complaint focuses solely on conduct involving his employment with 4 Defendant, not with any of the Defendant’s “outputs” such as public services, programs or 5 activities. Accordingly, to the extent Plaintiff seeks relief under Title II of the ADA based on his

6 employment, Defendants’ motion to dismiss is GRANTED. 7 B. FMLA Claim

8 The FMLA entitles eligible employees to take up to 12 work weeks of unpaid leave per 9 year for: (A) ‘the birth of a son or daughter ... in order to care for such son or daughter,’ (B) the 10 adoption or foster-care placement of a child with the employee, (C) the care of a ‘spouse ... son, 11 daughter, or parent’ with ‘a serious health condition,’ or (D) the employee's own serious health 12 condition when the condition interferes with the employee's ability to perform at work. Coleman 13 v. Court of Appeals of Maryland, 566 U.S. 30, 34 (2012), citing 29 U.S.C. § 2612(a)(1). 14 Subparagraph (D) is considered the “self-care provision.” See Id. And “suits against States 15 under [the self-care provision] are barred by the States’ immunity as sovereigns in our federal 16 system.” Id. at 33. 17 Here, Plaintiff’s complaint raises a claim under the FMLA’s self-care provision. (Dkt. 18 No. 3 at 8) (“The plaintiff took legally protected Family and Medical Leave (FMLA) dues to his 19 father’s death.”). Plaintiff’s FMLA claim for damages, therefore, is barred to the extent it is 20 based on an alleged failure to comply with the FMLA’s self-care provision. 21 Notwithstanding, as with Title I of the ADA, prospective injunctive relief is not barred. 22 See Williams v. Dorchester Cty. Det. Ctr., 987 F. Supp. 2d 690, 696 n.3 (D.S.C. 2013) (“There is 23 some authority that, in appropriate circumstances, suit may be brought in federal court against a 24 1 state official in their official capacity seeking prospective injunctive relief, including even under 2 the ‘self-care’ provision of the FMLA.”); Caberto v. Nevada ex rel. Dep't of Health & Human 3 Servs., Case No.: 2:18-cv-01034-APG-CWH, 2019 WL 1261104, at *4 (D. Nev. Mar. 19, 2019) 4 (“[Plaintiff] is requesting only prospective injunctive relief [under the FMLA’s self-care 5 provision] in the form of an order reinstating her to her pre-reassignment position and requiring

6 her employer to accommodate her disability . . . [t]his claim is not barred and is not futile.”). 7 To assert a claim under the FMLA, “a plaintiff must show that (1) he took ‘FMLA- 8 protected leave’; and (2) it constituted a ‘negative factor’ in an adverse employment decision.” 9 Jadwin v. County of Kern, 610 F. Supp. 2d 1129, 1159 (E.D. Cal. 2009). 10 Here, Plaintiff’s complaint fails to identify facts establishing that his exercise of FMLA 11 leave constituted a negative factor in an adverse employment decision. For example, Plaintiff 12 asserts only that “he experienced harassment related to his [FMLA] leave” and that “the evidence 13 suggests that his termination was a direct result of . . . use of FMLA leave[.]” (Dkt. No. 3 at 8.) 14 But these are conclusory statements without any alleged facts supporting these conclusions.6

15 Accordingly, Plaintiff’s FMLA claim is dismissed, but Plaintiff shall be given an 16 opportunity to amend his complaint to attempt to address the deficiencies identified. 17 C. State Law Claim

18 Plaintiff asserts a claim for violation of Washington State’s Paid Family and Medical 19 Leave statute. (Dkt. No. 3 at 4.) The Court, however, is unaware of authority supporting the 20 conclusion that the State of Washington has waived sovereign immunity as to state law claims 21 brought in federal court. See generally McConnell v. Critchlow, 661 F.2d 116, 117 (9th Cir. 22

23 6 Again, the various screen shots of text messages and other communications do not identify or discuss any adverse employment action that references Plaintiff’s FMLA leave. 24 1 1981) (“Washington’s waiver of immunity in its own courts does not waive its immunity in the 2 federal courts.”). Plaintiff has not offered any authority to the contrary. 3 Accordingly, Plaintiff’s claims based on Washington State’s Paid Family and Medical 4 Leave statute is DISMISSED without prejudice. 5 V. ORDER

6 Defendants’ motion to dismiss is GRANTED. Plaintiff, however, is granted leave to 7 amend his complaint to assert facts sufficient to support his request for injunctive relief under the 8 ADA and the FMLA. Plaintiff’s claims for money damages under the ADA and FMLA are 9 DISMISSED with prejudice. To the extent Plaintiff asserted a claim under Title II of the ADA 10 based on his employment, such claim is DISMISSED with prejudice. Plaintiff’s state law claim 11 is DISMISSED without prejudice. Plaintiff SHALL file an amended complaint no later than 30 12 days from the entry of this order. 13 The Clerk is directed to calendar this event. 14 Dated this 12th day of February, 2025.

15 A 16 David G. Estudillo 17 United States District Judge 18 19 20 21 22 23 24