Owens v. King County

• Court: District Court, W.D. Washington
• Decided: December 4, 2024
• Docket: 2:24-cv-00453
• Status: Unknown

Opinion

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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 TANNER OWENS, an individual, CASE NO. 2:24-cv-00453-TL 12 Plaintiff, ORDER ON MOTION TO DISMISS v. 13 KING COUNTY, PATTI COLE- 14 TINDALL, and JESSE ANDERSON in their individual and official capacity, 15 Defendants. 16

17 This case arises from Plaintiff’s allegation that he was discriminated against when he was 18 terminated from his position at the King County Sheriff’s Office in King County, Washington. 19 The instant matter comes before the Court on Defendants’ Partial Motion to Dismiss Plaintiff’s 20 Second Amended Complaint (“SAC”). Dkt. No. 23. Having reviewed the motion, Plaintiff’s 21 response (Dkt. No. 26), Defendants’ reply (Dkt. No. 27), and the relevant record, and finding 22 oral argument unnecessary, see LCR 7(b)(4), the Court GRANTS the motion. 23 // 24 // 1 I. BACKGROUND 2 A. Factual Background 3 On its face, this is an employment-discrimination complaint. For the purposes of this 4 Order, the Court accepts Plaintiff’s factual allegations as true. See Ashcroft v. Iqbal, 556 U.S.

5 662, 678 (2009). 6 Defendant King County employed Plaintiff Tanner Owens as a Deputy in the County 7 Sheriff’s Office between approximately October 1, 2015, and December 1, 2022. Dkt. No. 21 8 ¶¶ 4, 10. Plaintiff identifies as a “Gay Male” and asserts that, while employed at the Sheriff’s 9 Office, he was “one of only a handful of Gay Males” there. Id. ¶ 11. Plaintiff further identifies as 10 Caucasian. Id. ¶ 13. 11 The events leading to Plaintiff’s dispute with Defendants began on or about February 17, 12 2022, when Plaintiff allegedly attended an online training “labeled ‘BIPOC only.’” Id. ¶ 14. 13 Plaintiff asserts that “BIPOC stands for Black, Indigenous, and people of color.” Id. While 14 attending the training, Plaintiff initially kept his camera turned off. Id. ¶ 16. After “several

15 minutes,” Plaintiff turned his camera on. Id. Plaintiff alleges that, “[a]fter [he] turned off his 16 camera, he was removed from the meeting.” Id. ¶ 17.1 At some time after that, Plaintiff 17 “complained directly to [Defendant Cole-Tindall],” King County Sheriff, “and [Defendant 18 Anderson],” King County Undersheriff. Id. ¶ 21. Plaintiff also alleges that he “complained to 19 Defendant” and “disclosed this training exclusion to the news media.” Id. ¶¶ 19, 21. 20 21 22

1 It is not clear whether Plaintiff turned his camera on, then off again, and was then removed from the meeting; or if 23 Paragraph 17 means to state that, “After Plaintiff turned on his camera, he was removed from the meeting.” Regardless, the Court understands the allegation to assert that, at some point after turning his camera on, Plaintiff 24 was removed from the meeting, irrespective of whether it was on or off at the moment of the alleged removal. 1 On or about April 3, 2022, “IIU2022-076 was opened on Plaintiff.” Id. ¶ 24.2 Plaintiff 2 alleges that this action was taken “for actions that were alleged to have occurred on [sic] or about 3 November 2021.” Id. On or about April 5, 2022, Plaintiff was placed on administrative leave. Id. 4 ¶ 22. Plaintiff also alleges that, on or about that same date, he was suspended. Id. ¶ 23. Some six

5 months later, on or about October 14, 2022, “Plaintiff was notified that he was the subject of an 6 internal investigation for actions to have occurred in August of 2020.” Id. ¶ 26. On or about 7 October 17, 2022, “Plaintiff was notified that a Loudermill hearing would be held.” Id. ¶ 27.3 8 Throughout the pendency of these proceedings, Plaintiff asserts that he obtained legal 9 representation from the Fraternal Order of Police. Id. ¶ 29. 10 On or about December 1, 2022, Plaintiff was terminated. Id. ¶ 1. After his termination, 11 Plaintiff alleges that he was advised that his union, the “King County Police Officer’s Guild,” 12 “would not pursue his termination through arbitration.” Id. ¶ 30. 13 B. Procedural Background 14 On April 4, 2024, Plaintiff filed a complaint, alleging violations of the First and

15 Fourteenth Amendments to the United States Constitution under 42 U.S.C. § 1983. Dkt. No. 1 16 ¶¶ 36–55. Plaintiff also pleaded a state-law claim under the Washington Law Against 17 Discrimination (“WLAD”) and a state-law claim of outrage. Id. ¶¶ 56–61. On April 25, 2024, 18 Defendants moved to dismiss the outrage claim under Federal Rule of Civil Procedure 12(b)(1), 19 asserting that Plaintiff’s failure to submit the tort claim to the State prior to filing suit precludes 20 this Court from assuming jurisdiction over that claim. Dkt. No. 8 at 1. On May 9, 2024, Plaintiff 21 and Defendants agreed that Plaintiff would amend his complaint by eliminating his state-law 22

23 2 Plaintiff does not define or otherwise explain what “IIU2022-076” is. Based upon the surrounding context, the Court presumes that it refers to an internal investigation. See, e.g., Dkt. No. 21 ¶ 26. 24 3 Plaintiff does not define or otherwise explain what a “Loudermill hearing” is. 1 claims. Dkt. Nos. 15, 15-1. Plaintiff then filed an Amended Complaint (Dkt. No. 16), and 2 Defendants withdrew their Motion to Dismiss (Dkt. No. 17). 3 After filing his Amended Complaint, on May 29, 2024, Plaintiff sought to fulfill the tort- 4 claim-filing requirement and duly “filed a tort claim with King County.” Dkt. No. 18 at 2. Then,

5 on August 5, 2024, Plaintiff filed the SAC. Dkt. No. 21. In addition to the Section 1983 claims, 6 the SAC repleaded the alleged WLAD violation and the outrage claim. Dkt. No. 21 ¶¶ 56–61. 7 Although this was the second time Plaintiff had amended his complaint, there is no indication 8 that he complied with Federal Rule of Civil Procedure 15(a)(2) and obtained either Defendants’ 9 consent or the Court’s permission prior to doing so. (It is clear that Defendants agreed to 10 Plaintiff’s first amendment of his complaint.) Because Defendants have not objected to this 11 procedural lapse and do not appear to have been prejudiced by it, the Court will overlook the 12 issue. However, Plaintiff is cautioned that future violations of the Federal Rules of Civil 13 Procedure, this District’s Local Civil Rules, or this Court’s Standing Order for Civil Cases may 14 result in the striking of noncompliant filings or other sanctions.

15 On August 19, 2024, Defendants filed the instant partial motion to dismiss. In their 16 motion, Defendants seek dismissal of: (1) Plaintiff’s Fourteenth Amendment claims (i.e., “First 17 Claim for Relief”); (2) Plaintiff’s First Amendment claim (i.e., “Second Claim for Relief); 18 (3) Plaintiff’s WLAD claims based on sexual orientation and retaliation (i.e., components of the 19 “Third Claim for Relief”); and (4) Plaintiff’s state-law outrage claim (i.e., “Fourth Claim for 20 Relief”). Dkt. No. 23 at 6–7. Defendants do not now seek dismissal of the “single WLAD race 21 discrimination claim against King County.” Id. at 7. 22 II. LEGAL STANDARD 23 A defendant may seek dismissal when a plaintiff fails to state a claim upon which relief

24 can be granted. Fed. R. Civ. P. 12(b)(6). In reviewing a Rule 12(b)(6) motion to dismiss, the 1 Court takes all well-pleaded factual allegations as true and considers whether the complaint 2 “state[s] a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. 3 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While “[t]hreadbare recitals of the elements of a 4 cause of action, supported by mere conclusory statements,” are insufficient, a claim has “facial

5 plausibility” when the party seeking relief “pleads factual content that allows the court to draw 6 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 7 at 672. “When reviewing a dismissal pursuant to Rule . . . 12(b)(6), ‘we accept as true all facts 8 alleged in the complaint and construe them in the light most favorable to plaintiff[ ], the non- 9 moving party.’” DaVinci Aircraft, Inc. v. United States, 926 F.3d 1117, 1122 (9th Cir. 2019) 10 (alteration in original) (quoting Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 11 1152, 1156–57 (9th Cir. 2017)). 12 III. DISCUSSION 13 A. First and Second Claims for Relief 14 Plaintiff’s First Claim for Relief consists of two counts, both brought under 42 U.S.C.

15 § 1983, alleging violations of the Fourteenth Amendment to the United States Constitution. Dkt. 16 No. 21 ¶¶ 36–46. Plaintiff’s Second Claim for Relief, also brought under Section 1983, alleges 17 violations of the First Amendment. Id. ¶¶ 47–55. The Court finds that, as pleaded, all counts of 18 both claims are deficient and must be dismissed. 19 1. Liability of King County and Its Officers 20 As to both the First and Second Claims for Relief, Plaintiff has failed to adequately plead 21 Section 1983 liability against Defendant King County and against Defendants Cole-Tindall and 22 Anderson in their respective official capacities as Sheriff and Undersheriff. Courts treat 23 municipal-employee defendants sued in their official capacities the same way they treat the

24 municipality itself: “In order to sue a municipal entity—including employees acting within their 1 official capacities—a plaintiff must meet the oft-cited Monell standard, i.e., the plaintiff must 2 show that the alleged injury was inflicted through the execution or implementation of the entity’s 3 ‘official policy.’” Curtis v. City of Gooding, 844 F. Supp. 2d 1101, 1109 (D. Idaho 2012) (citing 4 Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978)) (emphasis added).

5 Therefore, the same analysis applies to all three Defendants. 6 To plausibly assert a claim against a municipality under Monell, “a plaintiff must allege 7 (1) that a municipality employee violated a constitutional right; (2) that the municipality has 8 customs or policies that amount to deliberate indifference of that right; and (3) those customs or 9 policies were the ‘moving force’ behind the constitutional right violation.” Hofschneider v. City 10 of Vancouver, 182 F. Supp. 3d 1145, 1151 (W.D. Wash. 2016) (citing Bd. of Cnty. Comm’rs v. 11 Brown, 520 U.S. 397, 404 (1997)). 12 Here, the SAC is silent with respect to an underlying policy related to the complained-of 13 conduct. See generally Dkt. No. 21. Each count of the First Claim for Relief alleges a single 14 violation untethered to any allegation of an official agency or county policy. Count One alleges a

15 “fail[ure] to provide adequate notice and opportunity to be heard regarding Plaintiff’s 16 termination.” Id. ¶ 40. Count Two alleges a “pretextual internal investigation” and “termination.” 17 Id. ¶ 44. The Second Claim for Relief alleges a “refus[al] to advance [Plaintiff’s] case to 18 arbitration.” Id. ¶ 48. The Court acknowledges that the Second Claim alludes to “the state’s 19 interest in ‘labor peace,’” but this is merely Plaintiff’s hypothetical supposition—nowhere does 20 he point to evidence indicating that Defendants’ conduct was actually motivated by an interest in 21 preserving “labor peace.” In any event, such a vague ideal is not a policy for the purpose of 22 assigning Section 1983 liability to a municipality or its officers. See Coming Up, Inc. v. City & 23 Cnty. of S.F., 830 F. Supp. 1302, 1307 (N.D. Cal. 1993) (defining an official policy for Section

24 1983 purposes as either “a policy statement, ordinance, regulation or decision officially adopted 1 and promulgated by that body’s officers” or a “custom . . . so permanent and well settled as to 2 constitute a custom or usage with the force of law” (internal quotation marks and citations 3 omitted)). Absent an allegation of a policy or custom, Plaintiff’s claims against the County and 4 its officers fail here.

5 The Court will dismiss Plaintiff’s First and Second Claims for Relief, as against 6 Defendant King County and Defendants Cole-Tindall and Anderson in their official capacities. 7 However, because Defendants could have put Plaintiff on notice of this deficiency in their first 8 motion to dismiss (so Plaintiff could also attempt to fix this issue when amending to address 9 notice issue raised by Defendants) but did not do so, the Court DISMISSES WITHOUT PREJUDICE 10 Plaintiff’s First and Second Claims for Relief, as against King County and Defendants Cole- 11 Tindall and Anderson in their official capacities, and will allow Plaintiff one final opportunity to 12 properly plead the claim. 13 2. Defendants’ Liability in Their Individual Capacities 14 Plaintiff has also brought his Section 1983 claims against Defendants Cole-Tindall and

15 Anderson in their individual capacities. Dkt. No. 21 at 1. The Court examines these claims 16 separately from Plaintiff’s claims against these defendants in their official capacities as county 17 officers. 18 Under Federal Rule of Civil Procedure 8(a), “a complaint fails to state a claim if it does 19 not indicate which individual defendant or defendants are responsible for which alleged wrongful 20 act.” Dodo Int’l Inc. v. Parker, No. C20-1116, 2021 WL 4060402, at *8 (W.D. Wash. Sept. 7, 21 2021). “Allegations against a unitary bloc of ‘Defendants’” are likewise inadequate. Id. 22 Plaintiff’s First Claim for Relief does not meet this standard. In Count One, Plaintiff 23 switches between allegations against “Defendants” and an unidentified “Defendant.” See Dkt.

24 No. 21 ¶¶ 39, 40. Upon review of the SAC, there is, to be sure, no way of knowing which 1 Defendant did what. Count Two is similarly deficient. Plaintiff lodges allegations against both 2 “Defendants” while also referring to an unidentified “Defendant’s” actions and omissions. See 3 id. ¶¶ 44, 45. The counts are no less clear when considered alongside the “Factual Allegations” 4 section of the SAC. The only specific references to Defendants Cole-Tindall and Anderson that

5 Plaintiff offers are his allegations that, “After Plaintiff was excluded from the training, he 6 complained directly to Sheriff and Undersheriff.” Id. ¶ 21. Beyond that, however, the entirety of 7 the SAC is given over to unspecified allegations; these are not sufficient to state a claim upon 8 which relief can be granted. 9 As to Plaintiff’s Second Claim for Relief, the first part4 of the claim is deficient, because 10 the asserted First Amendment violation is not plausibly alleged against any Defendant. Plaintiff 11 asserts that he “attempted to use his membership in the Fraternal Order of Police because he 12 feared his own union . . . would fail him. And it eventually did when it refused to advance his 13 case to arbitration.” Dkt. No. 21 ¶ 48 (emphasis added). By any interpretation, “it” refers to 14 Plaintiff’s union, not Defendants. That is, the plain language of the SAC indicates that

15 “[Plaintiff’s] own union” is responsible for “refus[ing] to advance his case to arbitration.” Id. 16 ¶ 48. Compounding the deficiency, even though Defendants pointed out in their Motion that 17 Plaintiff appears to allege wrongdoing on the part of Plaintiff’s union (see Dkt. No. 23 at 11), 18 and not the actual Defendants, Plaintiff’s response fails to address the problem beyond providing 19 a conclusory, unsupported statement that does not substantively address the underlying flaw in 20 the pleading. See Dkt. No. 26 at 3. Moreover, even if the Court looks past the apparently 21 misdirected allegation, the Second Claim for Relief exhibits the same problem as the First: It 22

23 4 Although not expressly pleaded this way, Plaintiff’s Second Claim for Relief encompasses two separate allegations: one associated with Plaintiff’s union representation (Dkt. No. 21 ¶¶ 47–53), and one associated with 24 retaliation for Plaintiff’s “complaining about racism and exclusion of training for being White” (Id. ¶¶ 54–55). 1 fails to ascribe specific wrongdoing to specific Defendants. Plaintiff alleges that, “By Defendant 2 [sic] refusing to arbitrate Plaintiff’s grievance, Defendant deprived Plaintiff of the benefits of his 3 association with the FOP. . . . Defendants is [sic] now estopped from arguing that Plaintiff was 4 required to work through his own Guild.” Dkt. No. 21 ¶¶ 52–53. These nonspecific allegations

5 are insufficient to state a claim. 6 The second part of Plaintiff’s Second Claim for Relief alleges that “Defendants also 7 retaliated against Plaintiff for complaining about racism and exclusion of training for being 8 White. . . . Plaintiff was terminated in retaliation for raising these concerns and disclosing the 9 disparate treatment to the media.” Id. ¶ 54. Again, it is not clear from the language of the SAC 10 who did what, and the Claim is thus insufficient as a matter of law. 11 Therefore, the Court DISMISSES Plaintiff’s First and Second Claims for Relief, as against 12 Defendants Cole-Tindall and Anderson in their individual capacities. 13 B. Third and Fourth Claims for Relief 14 Plaintiff’s Third and Fourth Claims for Relief are state-law claims. As with the First and

15 Second Claims for Relief, these claims appear to have been brought against Defendants Cole- 16 Tindall and Anderson in both their individual and official capacities. Plaintiff alleges violations 17 of WLAD and a claim of outrage. Id. ¶¶ 56–61. 18 1. Third Claim for Relief: WLAD 19 As to the Third Claim, Plaintiff alleges that he was discharged because of his color, 20 sexual orientation, and for opposing a discriminatory practice (i.e., “whistleblowing”). Id. ¶ 57. 21 Defendants argue that Plaintiff “makes no allegations at any point in the [SAC] that any action 22 was taken against him on account of his sexual orientation.” Dkt. No. 23 at 15. The Court agrees. 23 Plaintiff identifies himself as “a Gay Male, one of only a handful of Gay Males in the King

24 County Sheriff’s Office.” Dkt. No. 21 ¶ 11. But this is the extent of Plaintiff’s discussion about 1 his sexual orientation. He makes no effort, other than the conclusory allegation in Paragraph 57 2 (which simply states a legal conclusion), to identify a causal nexus between his termination and 3 his sexual orientation. The allegation is less substantive than even a threadbare recital of the 4 elements of a cause of action and is therefore insufficient as a matter of law.

5 As to Plaintiff’s WLAD whistleblower claim, Defendants assert that Plaintiff has not 6 adequately alleged the elements of such a claim. Dkt. No. 23 at 15. Defendants advise that 7 Plaintiff cited the wrong statute in the SAC: “RCW 42.40.020 . . . only provides causes of action 8 to individuals employed in . . . state government.” Id. (internal quotation marks and underscore 9 removed). Defendants note that, “Perhaps Plaintiff sought to plead a claim under RCW 10 42.41.040, a similar statute that provides a cause of action to employees of local governments.” 11 Id. But even then, Defendants argue, such a claim would fail as a matter of law, because Plaintiff 12 failed to provide statutorily required notice to the county and failed to exhaust his administrative 13 remedy prior to bringing suit. See id. at 15–16 (citing RCW 42.41.040(2)–(3)). In response, 14 Plaintiff asserts that he “did intend to plead a claim under RCW 42.41.040 and seeks relief to

15 amend the SAC.” Dkt. No. 26 at 4. Plaintiff asserts further that he timely “filed a Human Rights 16 Commission case on February 28, 2022 [sic].” Id. Notwithstanding the fact that February 28, 17 2022, predates Plaintiff’s termination by some nine months and, consequently, does not fit into 18 the chronological narrative of this case, the Human Rights Commission filing would not be 19 enough to cure the deficiencies in the claim. Defendants point out that “[e]ven if . . . Plaintiff 20 amend[ed] his complaint [again], the allegation that he filed a Human Rights Commission 21 complaint . . . would not save [the] claim,” because “a charge must be delivered to the local 22 government itself,” and “[t]he Human Rights Commission does not have jurisdiction for such a 23 claim.” Dkt. No. 27 at 5 (emphasis in original).

24 1 The Court agrees. Plaintiff’s whistleblower claim is fatally flawed. The Court first notes 2 that the applicable whistleblower procedure in this case is governed by King County’s local 3 whistleblower protection program, which Washington courts have found to be an adequate 4 substitute for the state’s statutory scheme. See Stanwell v. King Cnty. Parks, No. 440660-7-I,

5 2000 WL 1634608, at *6 (Wash. Ct. App. Oct. 30, 2000) (recognizing King County 6 Whistleblower Protection Ordinance as legally sufficient whistleblower program under state 7 law); see RCW 42.41.050 (“Any local government that has adopted or adopts a program for 8 reporting alleged improper governmental actions and adjudicating retaliation resulting from such 9 reporting shall be exempt from this chapter if the program meets the intent of this chapter.”). 10 Pursuant to the County Whistleblower Protection Ordinance, “an employee who believes 11 the employee has been retaliated against in violation of K.C.C. 3.42.030.E. must file a signed 12 written complaint within six months of when the alleged retaliation occurred or the employee 13 reasonably should have known of the occurrence. The complaint shall be filed with the ombuds.” 14 King Cnty., Wash., Code § 3.42.060(A); see also RCW 42.41.040(3) (“The charge shall be

15 delivered to the local government.”). Given that Plaintiff was terminated on December 1, 2022, 16 Plaintiff would have needed to file his complaint with—and only with—the county ombuds by 17 June 1, 2023. Plaintiff’s assertion that he timely “filed a Human Rights Commission” case is thus 18 irrelevant. See Dkt. No. 26 at 4. Plaintiff has failed to timely file his whistleblower complaint 19 with King County, and it is too late for him to do so now. 20 Therefore, the Court DISMISSES Plaintiff’s Third Claim for Relief with respect to sexual 21 orientation and whistleblowing. 22 2. Fourth Claim for Relief: Outrage 23 As to Plaintiff’s claim for outrage, Defendants argue that Plaintiff’s allegations “fall far

24 short” of the state’s standard for outrage. Dkt. No. 23 at 17. “To state a claim for the tort of 1 outrage a plaintiff must show: (1) extreme and outrageous conduct; (2) intentional or reckless 2 infliction of emotional distress; and (3) actual result to the plaintiff of severe emotional distress.” 3 Snyder v. Med. Serv. Corp. of E. Wash., 145 Wn.2d 233, 242, 35 P.3d 1158 (2001). “The 4 conduct in question must be ‘so outrageous in character, and so extreme in degree, as to go

5 beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable 6 in a civilized community.’” Birklid v. Boeing Co., 127 Wn.2d 853, 867, 904 P.2d 278 (1995) 7 (quoting Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975) (emphasis in original)). Or, 8 “[p]ut colloquially, the conduct must be so offensive that it leads a reasonable person to exclaim, 9 ‘Outrageous!’” Dodge v. Evergreen Sch. Dist., 513 F. Supp. 3d 1286, 1300 (W.D. Wash. 2021). 10 The Court finds that the complained-of conduct here is not sufficiently egregious to 11 sustain a claim of outrage. Plaintiff suggests that one instance of discrimination, combined with 12 retaliatory discharge, is inherently outrageous as a matter of law. Dkt. No. 26 at 9. But this is not 13 in line with Washington case law. In Schonauer v. DCR Entertainment, Inc., for example, the 14 Washington Court of Appeals reversed the trial court’s dismissal of claims of “hostile work

15 environment sexual harassment, quid pro quo sexual harassment, and retaliatory discharge in 16 violation of [WLAD],” but affirmed the trial court’s dismissal of the plaintiff’s outrage claim. 79 17 Wn. App. 808, 812, 905 P.2d 392 (1995). In that case, a waitress endured sexual harassment, 18 then was subsequently fired when she refused to dance nude on stage while management 19 “broadcast” to the audience information about her sexual preferences and sexual experience. Id. 20 at 813–14. That, under Washington law, is not outrageous. Moreover, where a claim of outrage is 21 predicated upon termination of employment, this Court has interpreted Washington law as 22 prescribing that “[i]t is the manner in which a discharge is accomplished that might constitute 23 outrageous conduct.” Leishman v. Wash. Att’y Gen. Off., No. C20-861, 2023 WL 7166183, at

24 *12 (W.D. Wash. Oct. 31, 2023) (citing Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 1 (1989)) (emphasis added). That is to say, the issue is how an employee was fired, not that they 2 were fired. Here, Plaintiff does not allege any facts to suggest that his discharge was effected in a 3 particularly outrageous manner. Rather, both Plaintiff’s SAC and Response rely on conclusory 4 allegations that “removing an employee from training due to his race was outrageous and

5 extreme,” as was his discharge. See Dkt. No. 21 ¶¶ 58–61; Dkt. No. 26 at 4. The Court finds 6 nothing in the allegations that would lead a reasonable person to exclaim, “Outrageous!” 7 Therefore, the Court DISMISSES Plaintiff’s Fourth Claim for Relief. 8 C. Dismissal With and Without Prejudice 9 “Normally, when a viable case may be pled, a district court should freely grant leave to 10 amend.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 11 2011). “[A] party is not entitled to an opportunity to amend his complaint if any potential 12 amendment would be futile.” Mirmehdi v. United States, 689 F.3d 975, 985 (9th Cir. 2012). 13 Further, “the district court’s discretion to deny leave to amend is particularly broad where 14 plaintiff has previously amended the complaint.” Cafasso, 637 F.3d at 1058 (citation omitted).

15 Although the Court’s Order grants Defendants’ Motion to Dismiss in its entirety, the 16 Court finds that some of Plaintiff’s claims can repleaded as viable claims. Plaintiff’s Section 17 1983 claims are salvageable. See supra Section III.A. Accordingly, these claims are dismissed 18 without prejudice. So, too, is Plaintiff’s WLAD claim predicated on sexual orientation. This 19 claim is dismissed without prejudice. See supra Section III.B.1. However, the Court flags the 20 problematic use of the terms “Defendants” and “Defendant” generically by Plaintiff throughout 21 the SAC. See generally Dkt. No. 21. The generic use of the terms makes it impossible to tell 22 whether “Defendants” refers to all Defendants collectively or to some subgroup of them, and 23 renders it unclear which “Defendant” is the subject of a particular allegation.

24 1 Plaintiff’s WLAD whistleblower claim, however, fails as a matter of law: Plaintiff has 2 failed to comply with statutory requirements for such a claim, and it is too late for him to do so 3 now. This claim is dismissed with prejudice. 4 As to Plaintiff’s claim of outrage, the Court is disinclined to give Plaintiff a fourth

5 opportunity to plead this claim. The allegations, as pleaded, fall far short of raising a legitimate 6 claim of outrage, and the Court finds that, if truly outrageous facts exist, Plaintiff would surely 7 have pleaded them by now. Therefore, Plaintiff’s claim of outrage is dismissed with prejudice. 8 Finally, the Court notes that Defendants did not move to dismiss Plaintiff’s WLAD claim 9 based on color. Dkt. No. 21 ¶ 57. That claim is sustained irrespective of the content of this Order. 10 IV. CONCLUSION 11 Accordingly, Defendants’ Partial Motion to Dismiss (Dkt. No. 23) is GRANTED. It is 12 hereby ORDERED: 13 14 (1) Counts One and Two of Plaintiff’s First Claim for Relief for a violation of 42

15 U.S.C. § 1983 (Fourteenth Amendment) are DISMISSED WITHOUT PREJUDICE. 16 (2) Plaintiff’s Second Claim for Relief for a violation of 42 U.S.C. § 1983 (First 17 Amendment) is DISMISSED WITHOUT PREJUDICE. 18 (3) Plaintiff’s Third Claim for Relief for violations of WLAD is DISMISSED WITHOUT 19 PREJUDICE as to claim(s) based on sexual orientation, and DISMISSED WITH 20 PREJUDICE as to claim(s) based on whistleblowing. 21 (4) Plaintiff’s Fourth Claim for Relief for outrage is DISMISSED WITH PREJUDICE. 22 23

24 1 (5) Should Plaintiff believe he has the facts to file a Third Amended Complaint 2 consistent with this Order, he SHALL file the amended complaint by January 6, 3 2025. 4 5 Dated this 4th day of December 2024. 6 / Ly ZC c 7 Tana Lin United States District Judge

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