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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 SHANNON SPENCER, CASE NO. C24-337 MJP 11 Plaintiff, ORDER ON MOTION TO DISMISS AND MOTION TO REMAND 12 v. 13 VERA WHOLE HEALTH, INC., et al., 14 Defendants. 15 16 This matter comes before the Court on Defendants’ Motion to Dismiss (Dkt. No. 9) and 17 Plaintiff’s Motion to Remand (Dkt. No. 10). Having reviewed the Motions, the Responses (Dkt. 18 Nos. 11, 15), the Replies (Dkt. Nos. 13, 16), and all supporting materials, the Court GRANTS 19 the Motion to Dismiss and DENIES the Motion to Remand as MOOT. 20 BACKGROUND 21 Plaintiff Shannon Spencer filed this class action in King County Superior Court against 22 Vera Whole Health and related entities to pursue claims Defendants violated the pay 23 transparency requirements of Washington’s Equal Pay and Opportunities Act (EPOA), RCW 24 1 49.58.110. Defendants removed the action to this Court and have moved to dismiss, while 2 Spencer asserts that the matter was improperly removed. The Court reviews the statutory and 3 factual background. 4 A. Statutory Background
5 Washington State passed its first equal pay legislation, the Equal Pay Act, in 1943, and 6 amended it for the first time in 2018, at which time it became known as the EPOA. See RCW 7 49.12.175; 49.58.005. The Washington Legislature found that “despite existing equal pay laws, 8 there continue[d] to be a gap in wages and advancement opportunities among workers in 9 Washington, especially women.” RCW 49.58.005. The law was updated “to address income 10 disparities, employer discrimination, and retaliation practices, and to reflect the equal status of all 11 workers in Washington state.” Id. 12 In 2019, the EPOA was further updated to address discriminatory hiring practices by 13 prohibiting employers “from seeking the wage or salary history of an applicant for employment 14 in certain circumstances,” and by requiring “an employer to provide wage and salary information
15 to applicants and employees” upon request, although only “after offering the applicant the 16 position.” RCW 49.58.005; see also RCW 49.58.100, -.110. 17 In 2022, the Legislature again amended the EPOA by modifying RCW 49.58.110 to 18 require employers to proactively disclose compensation information when a position is posted as 19 available. This “allows a discussion at the start of the process instead of after an offer has been 20 made, which will increase the ability to negotiate pay.” (Complaint ¶ 3 (quoting H.B. Rep. ESSB 21 5761, at 2 (Wash. 2022)) (Dkt. No. 1-1).) As Spencer points out, the Legislature amended the 22 Act in part to “‘allow[] a discussion at the start of the process instead of after an offer has been 23 made, which will increase the ability to negotiate pay.’” (Id. (quoting H.B. Rep. ESSB 5761, at
24 1 2).) The Legislature was also concerned that “‘[m]any candidates spend hours going through 2 rounds of interviews only to find out they can’t live on the offered pay.’” (Id. (quoting S.B. Rep. 3 ESSB 5761, at 3 (Wash. 2022)).) 4 The EPOA now states, in relevant part, that an employer must “disclose in each posting
5 for each job opening the wage scale or salary range, and a general description of all of the 6 benefits and other compensation to be offered to the hired applicant.” RCW 49.58.110(1). It is 7 this provision that Spencer claims Defendants violated. 8 B. Factual Background 9 Shannon Spencer lives in Washington and applied for an IT Service Desk Analyst 10 position at Defendants’ Seattle office. (Complaint ¶¶ 8, 17; Declaration of Timothy W. Emery 11 Ex. 1 (Dkt. No. 17-1 at 4).) Spencer alleges “[t]he posting for the job opening did not disclose 12 the wage scale or salary range to be offered.” (Id. ¶ 17.) He alleges that he and the members of a 13 proposed class of similarly-situated individuals “lost valuable time applying for jobs with 14 Defendants for which the wage scale or salary range was not disclosed.” (Id. ¶ 18.) Spencer
15 alleges that “[a]s a result of Plaintiff’s and Class members’ inability to evaluate the pay for the 16 position, negotiate that pay, and compare that pay to other available positions in the marketplace, 17 Class members were harmed.” (Id. ¶ 19.) But Spencer alleges only that he applied for the job, not 18 that he was qualified for the position, that he received any specific response, or that he received 19 an interview offer. 20 ANALYSIS 21 A. Legal Standard 22 Federal Rule of Civil Procedure 12(b)(1) allows litigants to seek the dismissal of an 23 action for lack of subject matter jurisdiction. A jurisdictional attack under Rule 12(b)(1) may be
24 1 facial or factual. In a facial attack, the challenger asserts that the allegations contained in a 2 complaint are insufficient on their face to invoke federal jurisdiction. Safe Air for Everyone v. 3 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Generally, in ruling on a Rule 12(b)(1) motion, the 4 court need not defer to a plaintiff’s factual allegations. Id. But where a Rule 12(b)(1) motion
5 seeks dismissal for lack of standing, the Court defers to the plaintiff’s factual allegations and 6 “presume[s] that general allegations embrace those specific facts that are necessary to support 7 the claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal quotation marks 8 omitted). “At the pleading stage, general factual allegations of injury resulting from the 9 defendant's conduct may suffice.” Id. at 560. In short, a 12(b)(1) motion to dismiss for lack of 10 standing can only succeed if the plaintiff has failed to make “general factual allegations of injury 11 resulting from the defendant's conduct.” Id. 12 Because the Court does not reach Defendants’ other arguments under Rule 12(b)(6), the 13 Court does not address the standards under Rule 12(b)(6). 14 B. Plaintiff Lacks Standing
15 The Court finds that Spencer lacks standing because he has failed to identify a concrete 16 injury from Defendants’ failure to provide statutorily-required salary information. 17 “Under Article III, the Federal Judiciary is vested with the ‘Power’ to resolve not 18 questions and issues but ‘Cases’ or ‘Controversies.’” Ariz. Christian Sch. Tuition Org. v. Winn, 19 563 U.S. 125, 132 (2011). “Among other things, that limitation requires a plaintiff to have 20 standing.” Fed. Election Comm’n v. Cruz, 596 U.S. 289, 295–96 (2022). If a plaintiff lacks 21 Article III standing, the Court does not have subject matter jurisdiction. See Warth v. Seldin, 422 22 U.S. 490, 498 (1975). “[T]o establish standing, a plaintiff must show (i) that he suffered an 23 injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was
24 1 likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial 2 relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citing Lujan v.
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 SHANNON SPENCER, CASE NO. C24-337 MJP 11 Plaintiff, ORDER ON MOTION TO DISMISS AND MOTION TO REMAND 12 v. 13 VERA WHOLE HEALTH, INC., et al., 14 Defendants. 15 16 This matter comes before the Court on Defendants’ Motion to Dismiss (Dkt. No. 9) and 17 Plaintiff’s Motion to Remand (Dkt. No. 10). Having reviewed the Motions, the Responses (Dkt. 18 Nos. 11, 15), the Replies (Dkt. Nos. 13, 16), and all supporting materials, the Court GRANTS 19 the Motion to Dismiss and DENIES the Motion to Remand as MOOT. 20 BACKGROUND 21 Plaintiff Shannon Spencer filed this class action in King County Superior Court against 22 Vera Whole Health and related entities to pursue claims Defendants violated the pay 23 transparency requirements of Washington’s Equal Pay and Opportunities Act (EPOA), RCW 24 1 49.58.110. Defendants removed the action to this Court and have moved to dismiss, while 2 Spencer asserts that the matter was improperly removed. The Court reviews the statutory and 3 factual background. 4 A. Statutory Background
5 Washington State passed its first equal pay legislation, the Equal Pay Act, in 1943, and 6 amended it for the first time in 2018, at which time it became known as the EPOA. See RCW 7 49.12.175; 49.58.005. The Washington Legislature found that “despite existing equal pay laws, 8 there continue[d] to be a gap in wages and advancement opportunities among workers in 9 Washington, especially women.” RCW 49.58.005. The law was updated “to address income 10 disparities, employer discrimination, and retaliation practices, and to reflect the equal status of all 11 workers in Washington state.” Id. 12 In 2019, the EPOA was further updated to address discriminatory hiring practices by 13 prohibiting employers “from seeking the wage or salary history of an applicant for employment 14 in certain circumstances,” and by requiring “an employer to provide wage and salary information
15 to applicants and employees” upon request, although only “after offering the applicant the 16 position.” RCW 49.58.005; see also RCW 49.58.100, -.110. 17 In 2022, the Legislature again amended the EPOA by modifying RCW 49.58.110 to 18 require employers to proactively disclose compensation information when a position is posted as 19 available. This “allows a discussion at the start of the process instead of after an offer has been 20 made, which will increase the ability to negotiate pay.” (Complaint ¶ 3 (quoting H.B. Rep. ESSB 21 5761, at 2 (Wash. 2022)) (Dkt. No. 1-1).) As Spencer points out, the Legislature amended the 22 Act in part to “‘allow[] a discussion at the start of the process instead of after an offer has been 23 made, which will increase the ability to negotiate pay.’” (Id. (quoting H.B. Rep. ESSB 5761, at
24 1 2).) The Legislature was also concerned that “‘[m]any candidates spend hours going through 2 rounds of interviews only to find out they can’t live on the offered pay.’” (Id. (quoting S.B. Rep. 3 ESSB 5761, at 3 (Wash. 2022)).) 4 The EPOA now states, in relevant part, that an employer must “disclose in each posting
5 for each job opening the wage scale or salary range, and a general description of all of the 6 benefits and other compensation to be offered to the hired applicant.” RCW 49.58.110(1). It is 7 this provision that Spencer claims Defendants violated. 8 B. Factual Background 9 Shannon Spencer lives in Washington and applied for an IT Service Desk Analyst 10 position at Defendants’ Seattle office. (Complaint ¶¶ 8, 17; Declaration of Timothy W. Emery 11 Ex. 1 (Dkt. No. 17-1 at 4).) Spencer alleges “[t]he posting for the job opening did not disclose 12 the wage scale or salary range to be offered.” (Id. ¶ 17.) He alleges that he and the members of a 13 proposed class of similarly-situated individuals “lost valuable time applying for jobs with 14 Defendants for which the wage scale or salary range was not disclosed.” (Id. ¶ 18.) Spencer
15 alleges that “[a]s a result of Plaintiff’s and Class members’ inability to evaluate the pay for the 16 position, negotiate that pay, and compare that pay to other available positions in the marketplace, 17 Class members were harmed.” (Id. ¶ 19.) But Spencer alleges only that he applied for the job, not 18 that he was qualified for the position, that he received any specific response, or that he received 19 an interview offer. 20 ANALYSIS 21 A. Legal Standard 22 Federal Rule of Civil Procedure 12(b)(1) allows litigants to seek the dismissal of an 23 action for lack of subject matter jurisdiction. A jurisdictional attack under Rule 12(b)(1) may be
24 1 facial or factual. In a facial attack, the challenger asserts that the allegations contained in a 2 complaint are insufficient on their face to invoke federal jurisdiction. Safe Air for Everyone v. 3 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Generally, in ruling on a Rule 12(b)(1) motion, the 4 court need not defer to a plaintiff’s factual allegations. Id. But where a Rule 12(b)(1) motion
5 seeks dismissal for lack of standing, the Court defers to the plaintiff’s factual allegations and 6 “presume[s] that general allegations embrace those specific facts that are necessary to support 7 the claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal quotation marks 8 omitted). “At the pleading stage, general factual allegations of injury resulting from the 9 defendant's conduct may suffice.” Id. at 560. In short, a 12(b)(1) motion to dismiss for lack of 10 standing can only succeed if the plaintiff has failed to make “general factual allegations of injury 11 resulting from the defendant's conduct.” Id. 12 Because the Court does not reach Defendants’ other arguments under Rule 12(b)(6), the 13 Court does not address the standards under Rule 12(b)(6). 14 B. Plaintiff Lacks Standing
15 The Court finds that Spencer lacks standing because he has failed to identify a concrete 16 injury from Defendants’ failure to provide statutorily-required salary information. 17 “Under Article III, the Federal Judiciary is vested with the ‘Power’ to resolve not 18 questions and issues but ‘Cases’ or ‘Controversies.’” Ariz. Christian Sch. Tuition Org. v. Winn, 19 563 U.S. 125, 132 (2011). “Among other things, that limitation requires a plaintiff to have 20 standing.” Fed. Election Comm’n v. Cruz, 596 U.S. 289, 295–96 (2022). If a plaintiff lacks 21 Article III standing, the Court does not have subject matter jurisdiction. See Warth v. Seldin, 422 22 U.S. 490, 498 (1975). “[T]o establish standing, a plaintiff must show (i) that he suffered an 23 injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was
24 1 likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial 2 relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citing Lujan v. Defenders of 3 Wildlife, 504 U.S. 555, 560–61 (1992)). Plaintiff bears the burden of establishing each of these 4 elements “with the manner and degree of evidence required at the successive stages of the
5 litigation.” Lujan, 504 U.S. at 561. “At the pleading stage, general factual allegations of injury 6 resulting from the defendant’s conduct may suffice[.]” Id.; accord Tingley v. Ferguson, 47 F.4th 7 1055, 1066 (9th Cir. 2022). 8 This case falls into a category of lawsuits where standing is premised on the violation of a 9 statutory right. “[T]he Supreme Court made clear that a plaintiff does not ‘automatically satisf[y] 10 the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to 11 authorize that person to sue to vindicate that right.’” Robins v. Spokeo, Inc. (Spokeo II), 867 12 F.3d 1108, 1112 (9th Cir. 2017) (quoting Spokeo, Inc. v. Robins (Spokeo I), 578 U.S. 330, 341 13 (2016) as revised (May 24, 2016)). To establish a concrete injury, “the plaintiff must allege a 14 statutory violation that caused him to suffer some harm that ‘actually exist[s]’ in the world; there
15 must be an injury that is ‘real’ and not ‘abstract’ or merely ‘procedural.’” Id. (quoting Spokeo I, 16 578 U.S. at 340). 17 “Although we often think of ‘tangible’ injuries as the basis of this jurisdictional 18 requirement, the Supreme Court has confirmed that ‘intangible injuries can nevertheless be 19 concrete.’” Magadia v. Wal-Mart Assocs., Inc., 999 F.3d 668, 679 (9th Cir. 2021) (quoting 20 Spokeo I, 578 U.S. at 340). While “[t]he omission of statutorily required information can 21 constitute a distinct, concrete injury,” “not ‘every minor inaccuracy reported in violation of [a 22 statute] will cause real harm or present any material risk of real harm.’” Id. (quoting Spokeo II, 23 867 F.3d at 1116). “[A]n intangible injury may be concrete if it presents a material risk of
24 1 tangible harm or ‘has a close relationship to a harm that has traditionally been regarded as 2 providing a basis for a lawsuit in English or American courts,’ like common law torts or certain 3 constitutional violations.” Phillips v. United States Customs & Border Prot., 74 F.4th 986, 991 4 (9th Cir. 2023) (quoting Spokeo I, 578 U.S. at 340-41).
5 “To determine whether the violation of a statute constitutes a concrete harm, we engage 6 in a two-part inquiry.” Magadia, 999 F.3d at 679. “We first consider ‘whether the statutory 7 provisions at issue were established to protect . . . concrete interests (as opposed to purely 8 procedural rights).’” Id. (quoting Spokeo II, 867 F.3d at 1113). “If so, we then assess ‘whether 9 the specific procedural violations alleged in this case actually harm, or present a material risk of 10 harm to, such interests.’” Id. (quoting Spokeo II, 867 F.3d at 1113). 11 Although the EPOA protects concrete interests of job applicants, the Court finds that the 12 alleged violation Spencer identifies did not cause an actual harm or present a material risk of 13 harm to that interest. The Court reviews its two-part analysis, below. 14 First, the Court finds that the salary disclosure requirement in the EPOA was established
15 to protect concrete, non-procedural rights for job applicants and employees. The EPOA was 16 recently amended to address the wage gap and income disparities that exist affecting workers in 17 Washington. RCW 49.58.005. The EPOA expressly states that “the legislature intends to require 18 an employer to provide wage and salary information to applicants and employees.” RCW 19 49.58.005(4). To promote this goal, the 2019 Amendments to the EPOA required employers to 20 provide wage and salary information to applicants upon request, but only “after offering the 21 applicant the position.” RCW 49.58.005, -.100-.110. Then in 2022, the Legislature amended the 22 EPOA to increase transparency by requiring proactive disclosure of wage and salary information 23 to “allow[] a discussion at the start of the process instead of after an offer has been made, which
24 1 will increase the ability to negotiate pay.” H.B. Rep. ESSB 5761, at 2. This change was designed 2 to avoid harm to those who “spend hours going through rounds of interviews only to find out 3 they can’t live on the offered pay.” S.B. Rep. ESSB 5761, at 3. Read together, this legislative 4 history confirms that the EPOA’s procedural requirement of disclosure was established to protect
5 applicants by arming them with sufficient information to ensure fair and equitable pay 6 negotiations, and to avoid wasting time interviewing for positions whose pay would never be 7 adequate. 8 Second, Spencer has failed to show how the lack of disclosure caused him an actual harm 9 or material risk of harm consistent with the EPOA. In full, Spencer alleges that as a result of the 10 missing pay scale and wage range information, he “lost valuable time” and was unable to 11 “evaluate the pay for the position, negotiate that pay, and compare that pay to other available 12 positions in the marketplace[.]” (Compl. ¶¶ 18-19.) But these allegations fail to show any actual 13 harm against which the EPOA intends to protect. Nowhere has Spencer alleged that he was 14 offered an interview or that he engaged in any pay negotiations. All Spencer alleges is that he
15 applied to job. And Spencer does not even allege he was qualified for the position. As a result, 16 the only injury Spencer identifies is the time he “lost” in submitting the application. This is not 17 an injury that the EPOA seeks to prevent or redress. The conclusion reached in a similar case 18 pending this District applies here: “[a] job posting that does not contain compensation 19 information is a technical violation, but it does not harm or create a material risk of harm to any 20 individual’s concrete interest” because “[a] nominal applicant with no interest in the position will 21 neither receive a benefit from early pay disclosure nor be harmed by the lack thereof.” Floyd v. 22 Insight Global, LLC, C23-1680 BJR, Order Granting Mot. to Dismiss at 14 (W.D. Wash. Apr. 23 25, 2024). As was the case in Floyd, Spencer has failed to identify a concrete and particularized
24 1 injury sufficient to satisfy Article III standing. On this basis, the Court GRANTS the Motion to 2 Dismiss. Because the Court lacks subject matter jurisdiction, the Court REMANDS this matter to 3 King County Superior Court and DENIES the Motion to Remand as MOOT. 4 CONCLUSION
5 The Court finds that Spencer has failed to allege an injury to a concrete interest sufficient 6 to satisfy Article III standing. The Court therefore lacks subject matter jurisdiction, and it may 7 not preside over this matter. The Court GRANTS Defendants’ Motion to Dismiss under Rule 8 12(b)(1) and REMANDS this matter to the King County Superior Court. The Court DENIES the 9 Motion to Remand as MOOT. 10 The clerk is ordered to provide copies of this order to all counsel. 11 Dated July 2, 2024. A 12 13 Marsha J. Pechman United States Senior District Judge 14 15 16 17 18 19 20 21 22 23 24