Mishari T. Smith v. New Easthill, LLC and Dong Shin

Opinion

HONORABLE RICHARD A. JONES 1

8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE

10 MISHARI T. SMITH, Case No. 2:25-cv-02130-RAJ

11 Plaintiff,

12 v. ORDER

13 NEW EASTHILL, LLC and DONG SHIN, 14 Defendants. 15 16 I. INTRODUCTION 17 THIS MATTER comes before the Court on the Motion to Dismiss (the “Motion,” 18 Dkt. # 8) of Defendants New Easthill, LLC and Dong Shin (collectively “Defendants”). 19 The Court has reviewed the Motion, Plaintiff Mishari T. Smith’s Response, Dkt. # 11,1 20 21

22 1 Plaintiff’s Response to the Motion was filed on December 17, 2025, several weeks after the deadline imposed by Local Court Rule 7(d)(4). Dkt. # 11. Defendants in their Surreply 23 request that Plaintiff’s failure to timely file any opposition “be construed by the court as an 24 admission that the motion has merit.” Dkt. # 13 at 1 (citing LCR 7(b)(2)). Plaintiff subsequently filed a Motion to Accept Late-Filed Opposition Nunc Pro Tunc, Dkt. # 23, claiming that her 25 filing was late due to excusable neglect. Having reviewed the parties’ submissions, the Court finds good cause to accept Plaintiff’s untimely filing. 26 1 Defendants’ Reply, Dkt. # 10, and Defendants’ Surreply, Dkt. # 13, and the balance of 2 the record. 3 For the reasons set forth below, the Court GRANTS the Motion WITHOUT 4 PREJUDICE. 5 II. BACKGROUND 6 Ms. Smith filed this action in King County Superior Court, alleging discrimination 7 and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S. Code § 2000e et 8 seq., against New Easthill, LLC and Mr. Shin. See Dkt. # 1-2. Ms. Smith alleges that 9 Defendants demoted Ms. Smith from her management position “[d]espite great reviews” 10 and an increase in “monthly revenue” under her leadership. Id. at 2. Ms. Smith further 11 alleges that she experienced two pay decreases in March and May of 2024, and that she 12 was still asked to continue performing her managerial tasks. Id. Ms. Smith alleges that 13 her constructive discharge and harassment began when she refused to work every 14 weekend. Id. Ms. Smith also alleges that she was the only employee to receive pay 15 decreases, and that Mr. Shin hired a young, unlicensed, and inexperienced friend despite 16 the company’s notification to Ms. Smith that the company could no longer afford to pay 17 her full salary. Id. at 2–3. Finally, Ms. Smith alleges that in October 2024, she “was 18 demoted to less than part-time,” Mr. Shin’s friend was promoted to a management 19 position, and a new employee was hired. Id. at 3. Accordingly, Ms. Smith asserts claims 20 for (1) discrimination under Title VII; (2) retaliation; and (3) emotional distress, pain, 21 suffering, and lost wages. Id. She seeks to recover compensatory damages, punitive 22 damages, and damages for emotional distress and pain and suffering. Id. 23 Defendants filed a Notice of Removal in this Court on October 29, 2025. Dkt. # 24 1. On November 4, 2025, Defendants filed the instant Motion, seeking dismissal of 25 Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6). Dkt. # 8. Defendants 26 1 then filed a Reply on December 2, 2025, citing Local Civil Rule 7(b)(2) and requesting 2 dismissal on that basis. Dkt. # 10. On December 17, 2025, Ms. Smith filed a Response 3 to the Motion and attempted to assert additional causes of action under the Age 4 Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S. Code § 621 et seq., and 5 the Washington Law Against Discrimination (“WLAD”), Chapter 49.60 RCW. Dkt. # 6 11. Defendants then filed a Surreply on December 22, 2025, again citing Local Civil 7 Rule 7(b)(2) and opposing the proposed amended complaint included in Plaintiff’s 8 Response. Dkt. # 13. 9 III. LEGAL STANDARD 10 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may be 11 dismissed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12 12(b)(6). To survive a motion to dismiss, a plaintiff must point to factual allegations in 13 the complaint that “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 14 Twombly, 550 U.S. 544, 570 (2007). In analyzing a motion to dismiss, courts generally 15 limit their review to the contents of the complaint. See Sprewell v. Golden State 16 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Additionally, courts “accept all factual 17 allegations in the complaint as true and construe the pleadings in the light most favorable 18 to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Where 19 plaintiffs proceed pro se, courts “must ‘construe the pleadings liberally’ and ‘afford the 20 [plaintiff] the benefit of any doubt.’” Boquist v. Courtney, 32 F.4th 764, 774 (9th Cir. 21 2022) (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)). “Conclusory 22 allegations and unreasonable inferences, however, are insufficient to defeat a motion to 23 dismiss.” Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007) (citations omitted). 24 Additionally, courts “may not supply essential elements of the claim that were not 25 26 1 initially pled.” Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014) (quoting Pena v. 2 Gardner, 976 F.2d 469, 471 (9th Cir.1992)). 3 IV. DISCUSSION 4 Ms. Smith alleges that Defendants violated Title VII of the Civil Rights Act of 5 1964 by discriminating and retaliating against her. Dkt. # 1-2. Defendants argue that 6 Ms. Smith’s Complaint should be dismissed because she (1) fails to state a claim for 7 discrimination under Title VII, (2) fails to state a claim for retaliation under Title VII, (3) 8 alleges a non-cognizable claim for damages, and (4) cannot hold Mr. Shin liable because 9 Title VII does not provide individual liability. Dkt. # 8 at 3–6. 10 A. Title VII Discrimination Claim 11 Title VII of the Civil Rights Act makes it unlawful for an employer “to discharge 12 any individual, or otherwise to discriminate against any individual with respect to his 13 compensation, terms, conditions, or privileges of employment, because of such 14 individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). 15 Defendants argue that Ms. Smith fails to state a discrimination claim under the 16 framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).2 17 Dkt. # 8 at 4. While the Court agrees that Ms. Smith fails to sufficiently plead a 18 discrimination claim, the Court reaches this conclusion on a separate basis. 19 The correct standard to apply in a Title VII discrimination case at the pleading 20 stage is the ordinary standard under Federal Rule of Civil Procedure 8(a). See 21 Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511–14 (2002); Austin v. Univ. of Oregon, 22 925 F.3d 1133, 1136 (9th Cir. 2019). In Swierkiewicz, the Supreme Court explained that 23

24 2 Defendants do not cite directly to McDonnell Douglas in the Motion, but they rely upon 25 Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 847 (9th Cir. 2004), which applies the McDonnell Douglas framework. See Dkt. # 8 at 4. 26 1 “the requirements for establishing a prima facie case under McDonnell Douglas” do not 2 “apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to 3 dismiss.” Swierkiewicz, 534 U.S. at 511. The McDonnell Douglas framework “is an 4 evidentiary standard, not a pleading requirement.” Id. at 510. In 2019, the Ninth Circuit 5 recognized and applied the principles in Swierkiewicz in a Title IX case. Austin, 925 F.3d 6 at 1136 n.3. The Ninth Circuit further rejected the application of the McDonnell Douglas 7 framework at the pleading stage in Title VII cases by declining to follow Second Circuit 8 precedent applying the McDonnell Douglas standard at the motion to dismiss stage. Id. 9 at 1137 (characterizing Doe v. Columbia University, 831 F.3d 46, 55–56 (2d Cir. 2016) 10 and Littlejohn v. City of New York, 795 F.3d 297, 309–10 (2d Cir. 2015) as “contrary to 11 Supreme Court precedent”). 12 Under Rule 8(a)(2), a complaint must include “a short and plain statement of the 13 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While Ms. 14 Smith’s Complaint contains allegations of a demotion, pay decreases that only she 15 experienced, and favoritism of another employee, her Complaint does not contain 16 allegations that she is a member of a protected class under 42 U.S.C. § 2000e-2(a)(1), 17 which is fatal to her claim. See generally Dkt. # 1-2. Additionally, the Complaint is 18 pleaded in conclusory fashion without sufficient factual support. See generally id. For 19 instance, Ms. Smith does not provide facts about her previous salary compared to her 20 new salary. While Ms. Smith alleges that Mr. Shin “hired a [sic] unlicensed, 21 inexperienced close friend,” she does not plead any facts connecting this or other adverse 22 actions to discrimination on the basis of her membership in a protected class. Id. at 2. 23 Instead, Ms. Smith alleges in conclusory fashion that she “was demoted of position, pay 24 and hours and was replaced by a young newly hired unlicensed, inexperienced 25 employee.” Id. at 3. These claims do not constitute “nonconclusory allegations plausibly 26 1 linking the [adverse] action to discrimination,” as is required for a Title VII claim to 2 survive a motion to dismiss. Clark v. Washington State Dep’t of Health, 735 F. Supp. 3d 3 1334, 1349 (W.D. Wash. 2024) (citing Austin, 925 F.3d at 1139). 4 The Court acknowledges that Ms. Smith disclosed in her Response that she is an 5 “African American woman” who was subject to adverse employment actions while 6 “similarly situated younger, non-African American employees were treated more 7 favorably.” Dkt. # 11 at 2. Even if these allegations were sufficient to cure the 8 deficiencies in Ms. Smith’s Complaint, courts limit their review to the contents of the 9 complaint when deciding a motion dismiss under Federal Rule of Civil Procedure 10 12(b)(6). See Sprewell, 266 F.3d at 988. Therefore, the Court dismisses Ms. Smith’s 11 Title VII discrimination claim. 12 B. Title VII Retaliation Claim 13 Title VII also makes it unlawful for an employer to discriminate against an 14 employee because the employee “opposed . . . an unlawful employment practice.” 42 15 U.S.C. § 2000e-3(a). To successfully assert a prima facie case of retaliation, an employee 16 plaintiff “must show that (1) [she] engaged in a protected activity; (2) [her] employer 17 subjected [her] to an adverse employment action; and (3) a causal link exists between the 18 protected activity and the adverse action.” Ray v. Henderson, 217 F.3d 1234, 1240 (9th 19 Cir. 2000) (citing Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 20 1994)). Ms. Smith’s Complaint fails to meet this standard. Theoretically, Ms. Smith’s 21 pay decreases and demotion could constitute adverse employment actions. However, 22 Ms. Smith fails to allege that she engaged in protected activity that caused Defendants to 23 subject her to these adverse employment actions. See generally Dkt. # 1-2. Instead, Ms. 24 Smith alleges in conclusory fashion that “[a]fter Mishari rejected new schedule of 25 working every weekend, Mishari was demoted in her position, pay and hours.” Id. at 3. 26 1 These claims alone do not establish a prima facie case of retaliation under Title VII. See, 2 e.g., Pandya v. Bank of Am., No. C23-1947JLR, 2024 WL 519178, at *7 (W.D. Wash. 3 Feb. 9, 2024) (dismissing retaliation claim due to the court’s inability to discern from the 4 complaint “how [the plaintiff] engaged in a protected activity, nor whether a 5 causal link exists between any such activity and an adverse employment action.”). 6 Similarly, Ms. Smith’s Response contains only conclusory assertions. See Dkt. # 7 11 at 2. Ms. Smith asserts that she “engaged in protected activity by reporting and 8 opposing racial discrimination directly to ownership,” that “[o]pposing discriminatory 9 practices constitutes protected activity,” and that she “was subjected to a pay cut demand, 10 demotion, and constructive discharge” shortly thereafter. Id. Again, the Court confines 11 its review to factual allegations made in the Complaint in deciding this Motion to Dismiss 12 under Rule 12(b)(6). See Sprewell, 266 F.3d at 988. Thus, the Court accordingly 13 dismisses Ms. Smith’s Title VII retaliation claim. 14 C. Emotional Distress, Pain and Suffering, and Lost Wages 15 Ms. Smith asserts a third cause of action for emotional distress, pain and suffering, 16 and lost wages. Dkt. # 1-2 at 3. Defendants argue that no such separate cause of action 17 exists. Dkt. # 8 at 5–6. The Court agrees, but adds that courts liberally construe the 18 pleadings of pro se litigants. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). 19 “This rule is particularly important in civil rights cases.” Id. (citation omitted). Given 20 this liberal policy, the Court does not construe Ms. Smith’s third “cause of action” as a 21 separate claim, but as a request for compensatory and punitive damages based on 22 allegedly intentional violations of Title VII. See 42 U.S.C. § 1981a(b) (authorizing 23 compensatory and punitive damages, including limited compensatory damages for 24 “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, [and] 25 loss of enjoyment of life,” in intentional Title VII discrimination cases). 26 1 2 D. Individual Liability 3 Ms. Smith named Mr. Shin as a defendant in her Complaint. Dkt. # 1-2. 4 Defendants argue that Ms. Smith does not assert a cognizable claim against Mr. Shin 5 because Title VII does not provide liability against individual defendants. Dkt. # 8 at 6. 6 The Court agrees that Ms. Smith’s claims against Mr. Shin fail. The Ninth Circuit has 7 squarely held that “individual defendants cannot be held liable for damages under Title 8 VII.” Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993) (citing Padway v. 9 Palches, 665 F.2d 965, 968 (9th Cir. 1982)); Atanda v. Norgren (IMI Precision Eng’g), 10 No. C20-0796-JCC, 2022 WL 251966, at *2 (W.D. Wash. Jan. 27, 2022) (rejecting 11 plaintiff’s “official capacity claims” asserted against individual employees because the 12 action did not involve government employees, and the employees were not “employers” 13 under Title VII or the ADEA). Thus, the Court dismisses the claims against Mr. Shin. 14 E. Leave to Amend 15 “A pro se litigant must be given leave to amend his or her complaint, and some 16 notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint 17 could not be cured by amendment.” Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 18 1995) (citation omitted). Given this liberal policy in favor of amendment, the Court finds 19 that Ms. Smith’s Title VII discrimination and retaliation claims are potentially capable 20 of amendment. Therefore, the Court grants Ms. Smith leave to amend her Complaint. If 21 Ms. Smith wishes to continue pursuing her Title VII discrimination claim, she must file 22 an amended complaint setting forth factual allegations demonstrating that: (1) she is a 23 member of a protected class on the basis of her race, color, religion, sex, or national 24 origin; (2) she performed according to her employer’s expectations; (3) she suffered one 25 or more adverse employment actions; and (4) similarly situated individuals outside her 26 1 protected class were treated more favorably, or other circumstances give rise to an 2 inference of discrimination. If Ms. Smith wishes to continue pursuing her Title VII 3 retaliation claim, she must file an amended complaint containing factual 4 allegations demonstrating that: (1) she engaged in a protected activity; (2) she suffered 5 one or more adverse employment actions; and (3) there was a causal link between her 6 protected activity and the adverse employment action(s). 7 V. CONCLUSION 8 For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss, 9 Dkt. # 8, and DISMISSES the Complaint WITHOUT PREJUDICE. Ms. Smith is 10 directed to file any amended complaint within 30 days of this Order. The Court also 11 GRANTS Plaintiff’s Motion to Accept Late-Filed Opposition Nunc Pro Tunc. Dkt. # 12 23. The Clerk of Court is directed to terminate as moot Plaintiff’s Motion for Leave to 13 File First Amended Complaint. Dkt. # 16. 14 15 Dated this 28th day of April, 2026.

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17 18 The Honorable Richard A. Jones United States District Judge 19

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