Taylor v. Metropolitan Development Council

• Court: District Court, W.D. Washington
• Decided: October 16, 2023
• Docket: 3:22-cv-05509
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 MAUREEN TAYLOR, 8 Plaintiff, Case No. C22-5509-JCC-SKV 9 v. ORDER RE: MOTION TO AMEND 10 METROPOLITAN DEVELOPMENT COUNCIL, 11 Defendant. 12

13 INTRODUCTION 14 Plaintiff Maureen Taylor filed a Motion to Amend. Dkt. 37. Defendant Metropolitan 15 Development Council (MDC) opposes the motion. Dkt. 38. The Court, having considered the 16 motion, response, and relevant record, herein DENIES the Motion to Amend, Dkt. 37, based on 17 futility. 18 BACKGROUND 19 On May 20, 2022, Plaintiff filed a Complaint in Pierce County Superior Court associated 20 with her former employment as a chemical dependency nurse for MDC. Dkt. 1-2. Plaintiff 21 alleged that, in mid-2019, she made internal reports of missing controlled substances and over- 22 and under-medicating of patients due to improper transcription of orders; that MDC subsequently 23 placed her on unpaid leave and, in February 2020, terminated her employment; that she filed a 1 grievance over the termination; and that she eventually reported the missing controlled 2 substances and medication issues to the Washington Department of Health (DOH). Id., ¶¶3.5- 3 3.10. She brought claims for breach of employment agreement, wrongful termination in 4 violation of public policy, and retaliation. Id., ¶¶4.1-4.9.

5 MDC removed the matter to this Court and filed a motion to dismiss. Dkts. 1 & 9. The 6 Court denied the motion to dismiss and entered a scheduling order and stipulated amended 7 scheduling order. Dkts. 18, 22 & 34. The parties commenced discovery and, on the deadline for 8 amended pleadings, Plaintiff filed the motion now under consideration. Dkt. 37. 9 DISCUSSION 10 Plaintiff moves for leave to amend pursuant to Federal Rule of Civil Procedure 15. She 11 seeks to add four claims: (1) violation of RCW 49.60, Washington’s Law Against 12 Discrimination (WLAD); (2) violation of RCW 43.70 for retaliation against health care 13 whistleblower; (3) violation of RCW 18.51, retaliation against employee reporting misconduct of 14 community-based care; and (4) violation of 42 U.S.C. § 1981 through discrimination and

15 retaliation in workplace against whistleblowers. See Dkt. 37-1. 16 Under Rule 15, the Court “should freely give leave [to amend a pleading] when justice so 17 requires.” Fed. R. Civ. P. 15(a). Granting leave to amend serves the purpose of Rule 15 to 18 “‘facilitate decision on the merits, rather than on the pleadings or technicalities[,]’” Novak v. 19 United States, 795 F.3d 1012, 1020 (9th Cir. 2015) (quoted source omitted), and the Rule’s 20 policy of favoring amendments “should be applied with extreme liberality[,]” DCD Programs, 21 Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (cleaned up and citations omitted). 22 The decision to grant or deny a motion for leave to amend rests in the sound discretion of 23 the Court. Int’l Ass’n of Machinists & Aerospace Workers v. Republic Airlines, 761 F.2d 1386, 1 1390 (9th Cir. 1985). Leave to amend may be denied where there is undue delay, bad faith or 2 dilatory motive, undue prejudice to the opposing party, or when the amendment would be futile. 3 Foman v. Davis, 371 U.S. 178, 182 (1962). Courts may also consider whether a party previously 4 amended the complaint. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).

5 MDC argues that leave to amend should be denied based on futility. In considering 6 futility, leave to amend may be denied where a proposed amended pleading “‘either lacks merit 7 or would not serve any purpose because to grant it would be futile in saving the plaintiff’s suit.’” 8 Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1144 (9th Cir. 2015) (quoted source 9 omitted). See also Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998) (the 10 general rule allowing amendment of pleadings “does not extend to cases in which any 11 amendment would be an exercise in futility, . . . or where the amended complaint would also be 12 subject to dismissal[.]”) (citations omitted). “‘Futility alone can justify the denial of a motion to 13 amend.’” Johnson v. Buckley, 356 F.3d 1067 (9th Cir. 2004) (quoted source omitted). However, 14 leave to amend should only be denied as futile when no set of facts can be proven under the

15 amended pleading that would constitute a valid claim. Barahona v. Union Pac. R.R., 881 F.3d 16 1122, 1134 (9th Cir. 2018). In this case, the Court agrees that the motion to amend is properly 17 denied as futile.1 18 / / / 19 / / / 20

1 MDC also observes that the proposed amended pleading does not allege any new facts and 21 simply proposes new theories of liability that could have been alleged when the Complaint was first filed. Compare Dkt. 1-2, with Dkt. 37-1. It argues that this provides an additional basis for denying leave to 22 amend. Vincent v. Trend W. Tech. Corp., 828 F.2d 563, 570-71 (9th Cir. 1987) (court does not abuse discretion in denying motion for leave to amend where plaintiff offers “only a new theory and ‘no 23 satisfactory explanation for his failure to fully develop his contentions originally.’”) (quoting Stein v. United Artists Corp., 691 F.2d 885, 898 (9th Cir. 1982)). The Court, as discussed herein, finds futility alone a sufficient basis for denying leave to amend. 1 A. RCW 49.60 2 Plaintiff seeks to allege a violation of RCW 49.60.210, the WLAD provision prohibiting 3 retaliation against a whistleblower. In explaining the basis for this claim, Plaintiff asserts that 4 she reported, both internally to her supervisors and externally to the DOH, the under- and over-

5 medicating of patients, and deems this an “‘unfair practice’ under RCW 49.60.222 2(b) wherein 6 her termination violated RCW 49.60.210.” Dkt. 37 at 4; Dkt. 37-1, ¶¶4.12-4.13; Dkt. 43 at 2. 7 Pursuant to RCW 49.60.210, it is an unfair practice for an employer to discharge or 8 otherwise discriminate against a person “because he or she has opposed any practices forbidden 9 by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding 10 under this chapter.” RCW 49.60.210(1) (emphasis added). The practices forbidden under the 11 WLAD include termination or other discrimination based on age, sex, marital status, sexual 12 orientation, race, creed, color, national origin, citizenship or immigration status, honorably 13 discharged veteran or military status, the presence of a disability or the use of a service animal by 14 a person with a disability. RCW 49.60.180. To establish a violation of RCW 49.60.210, an

15 employee must make a prima facie case that (1) she engaged in statutorily protected opposition 16 activity; (2) she was discharged or suffered some other adverse employment action; and (3) there 17 is a causal connection between the opposition and the discharge. Allison v. Housing Auth., 59 18 Wn. App. 624, 626-27, 799 P.2d 1195 (1990), aff’d, 118 Wn.2d 79, 821 P.2d 34 (1991). 19 Here, in alleging she engaged in statutorily protected opposition activity, Plaintiff cites to 20 “RCW 49.60.222 2(b).” However, that provision addresses “[u]nfair practices with respect to 21 real estate transactions, facilities, or services[,]” RCW 49.60.222 (emphasis added), and is not 22 applicable to the facts alleged, see RCW 49.60.222(2)(b) (defining discrimination based on the 23 presence of any sensory, mental, or physical disability or the use of a trained dog guide or 1 service animal by a person who is blind, deaf, or physically disabled to include the refusal “to 2 make reasonable accommodation in rules, policies, practices, or services when such 3 accommodations may be necessary to afford a person with the presence of any sensory, mental, 4 or physical disability and/or the use of a trained dog guide or service animal by a person who is

5 blind, deaf, or physically disabled equal opportunity to use and enjoy a dwelling”) (emphasis 6 added). 7 Nor does Plaintiff otherwise identify opposition activity protected under the WLAD. She 8 does not, for example, allege she was terminated after reporting that MDC engaged in disability 9 discrimination. Plaintiff, instead, alleges she was terminated after she reported MDC’s failure to 10 comply with medication and other health-related protocols. That activity does not fall within the 11 scope of the WLAD. See RCW 49.60.180. As such, the proposed claim lacks merit and its 12 inclusion in an amended pleading would be futile. Cf. Graves v. Dep’t of Game, 76 Wn. App. 13 705, 712, 887 P.2d 424 (1994) (granting summary judgment on claim of retaliatory discharge 14 under RCW 49.60.210 where claim did not suggest complaints of discrimination on the basis of

15 sex and therefore did not identify protected opposition activities). 16 B. RCW 43.70 17 Plaintiff also seeks to allege that the termination of her employment violated RCW 43.70, 18 the Washington Health Care Act (WHCA).2 Plaintiff asserts that she is a “whistleblower” under 19 RCW 43.70.075, which, by definition, includes an employee or health care professional “who in 20 good faith reports alleged quality of care concerns to the [DOH] or initiates, participates, or 21 cooperates in any investigation or administrative proceeding under this section.” RCW 22

23 2 Although Plaintiff cites to both RCW 49.70, the Worker and Community Right to Know Act, and RCW 43.70, the WHCA, it is apparent she seeks to bring a claim under RCW 43.70. See Dkt. 37 at 4; Dkt. 37-1, ¶4.14; Dkt. 43 at 4. 1 43.70.075(3)(d). She asserts that MDC’s employment actions, including her termination, 2 violated the WHCA. See RCW 43.70.075(3)(c) (defining “[r]eprisals or retaliatory actions” 3 under the statute as including, but not limited to, inter alia, “reduction in pay; denial of 4 promotion; suspension; dismissal; denial of employment; a supervisor or superior encouraging

5 coworkers to behave in a hostile manner toward the whistleblower; and the revocation, 6 suspension, or reduction of medical staff membership or privileges without following a medical 7 staff sanction process”). 8 In arguing futility, MDC notes that, in her deposition, Plaintiff acknowledged she first 9 made a complaint to the DOH on March 9, 2020, Dkt. 39, Ex. A at 128:17-25, 130:9-12, after 10 her February 2020 termination, Dkt. 1-2, ¶3.8 & Dkt. 37-1, ¶4.8. See also Dkt. 39, Ex. D 11 (termination letter dated February 21, 2020). MDC argues that Plaintiff is thus not a 12 whistleblower under RCW 43.70. See RCW 43.70.075(1)(a) (providing that the identity of a 13 whistleblower must remain confidential if whistleblower complains in good faith to the DOH 14 about improper quality of care by health care provider or facility, initiates in good faith any

15 investigation or administrative proceeding about a complaint of improper quality of care made to 16 the department, or submits a notification or report of an adverse event or incident to the DOH). 17 In her reply, Plaintiff does not deny she made her report to the DOH after her 18 termination. She also appears to acknowledge this fact in both her original and proposed 19 pleadings. See Dkt. 1-2, ¶3.10 (alleging she filed a grievance over the termination and 20 “eventually” made reports to the DOH); Dkt. 37-1, ¶¶3.9-3.10 (same). Plaintiff, at best, responds 21 that MDC’s handbook qualifies her as a per se whistleblower based on her internal reporting. 22 See Dkt. 43, Ex. A. 23 1 Under the WHCA, “[a]n employee who is a whistleblower, as defined in this section, and 2 who as a result of being a whistleblower has been subjected to workplace reprisal or retaliatory 3 action has the remedies provided under chapter 49.60 RCW.” RCW 43.70.075(1)(c) (emphasis 4 added). As noted above, a whistleblower is defined as including an employee or health care

5 professional who in good faith “reports alleged quality of care concerns to the [DOH] or initiates, 6 participates, or cooperates in any investigation or administrative proceeding under this section.” 7 RCW 43.70.075(3)(d). 8 Plaintiff does not and it appears cannot set forth any facts supporting a claim that she was 9 terminated as a result of her DOH complaint. Nor does she identify, or the Court find, any basis 10 for concluding that the WHCA provides for a claim of retaliation resulting from an internal 11 employee complaint. See Worley v. Providence Physician Servs. Co., 175 Wn. App. 566, 573- 12 75, 307 P.3d 759 (2013) (addressing the WHCA in relation to a claim of wrongful discharge in 13 violation of public policy and finding that, because plaintiff did not file a complaint with the 14 DOH, she “failed to avail herself of the RCW 43.70.075 protections.”; rejecting the contention

15 that “internal reporting should be adequate” as insufficient to satisfy a violation of public policy). 16 Because Plaintiff made her DOH report after her termination, she was not subjected to workplace 17 reprisal or retaliatory action “as a result of being a whistleblower” as that term is defined in the 18 WHCA. 19 In addition, and as MDC observes, the WHCA contains a built-in two-year statute of 20 limitations for filing a civil action. RCW 43.70.075(2) (“A civil action under this section may 21 not be brought more than two years after the date when the retaliation occurred.”) Therefore, 22 even if Plaintiff did meet the definition of a WHCA whistleblower, her Complaint, filed on May 23 2, 2022 and challenging her February 2020 termination, is precluded by the applicable statute of 1 limitations. Plaintiff asserts that MDC’s retaliation is “continuous” because, even after her 2 report, she has not been reinstated. However, because Plaintiff fails to meet the definition of a 3 WHCA whistleblower in the first instance, any attempt to assert a WHCA claim would be futile. 4 C. RCW 18.51

5 Plaintiff additionally seeks to assert a claim under RCW 18.51, alleging retaliation 6 against an employee reporting misconduct of community-based care. Specifically, Plaintiff 7 asserts that, pursuant to RCW 18.51.010(1), MDC provides community-based care through its 8 employees providing personal care services to people suffering mental issues, and that, pursuant 9 to RCW 18.51.220(1), MDC was prohibited from any retaliation or discrimination “in any 10 manner against a patient or employee in its nursing home on the basis or for the reason that such 11 patient or employee or any other person has initiated or participated in any proceeding specified 12 in this chapter.” Dkt. 37 at 5; Dkt. 37-1, ¶¶4.16-4.17. She alleges MDC “committed a per se 13 violation of RCW 18.51.010(1).” Dkt. 37-1, ¶4.18. 14 RCW 18.51 governs state regulation of nursing homes. RCW 18.51.005 (“The purpose

15 of this chapter is to provide for the development, establishment, and enforcement of standards for 16 the maintenance and operation of nursing homes . . . . An important secondary purpose is the 17 improvement of nursing home practices by educational methods so that such practices eventually 18 exceed the minimum requirements of the basic law and its original standards.”) Accord 19 Donohoe v. State, 135 Wn. App. 824, 846, 142 P.3d 654 (2006). MDC denies it is a nursing 20 home governed under RCW 18.51, and explains and provides support for its contention that it is 21 licensed to do business as a Behavioral Health Agency and a Residential Treatment Facility, both 22 of which are governed under RCW 71.12. Dkt. 39, ¶7 & Ex. F. 23 1 Plaintiff does not contend that MDC is licensed or operates as a nursing home, and does 2 not dispute MDC’s characterization of itself or the applicability of RCW 71.12. Plaintiff argues 3 that, because a nursing home “may also include community-based care,” RCW 18.51.010(3), she 4 may pursue a claim against MDC pursuant to RCW 18.51. Dkt. 43 at 4 (arguing MDC presents

5 a “strawman’s argument” because the definition of a nursing home includes the provision of 6 community-based care) (citing RCW 18.51.010). 7 The protection against retaliation under RCW 18.51 applies to an employee of a licensed 8 nursing home. RCW 18.51.220(1) (“No licensee shall discriminate or retaliate in any manner 9 against a patient or employee in its nursing home on the basis or for the reason that such patient 10 or employee or any other person has initiated or participated in any proceeding specified in this 11 chapter.”) The fact that a nursing home may include community-based care does not mean that 12 any entity providing such care is a nursing home.3 Nor is there any basis for alleging a violation 13 of RCW 18.51.010(1), a provision that merely defines community-based care. RCW 14 18.51.010(1) (“‘Community-based care’ means but is not limited to the following: “(a) Home

15 delivered nursing services; (b) Personal care; (c) Day care; (d) Nutritional services, both in-home 16 and in a communal dining setting; (e) Habilitation care; and (f) Respite care.”). Because Plaintiff 17 does not allege or set forth any facts supporting an allegation that she was an employee of a 18 nursing home, a claim of retaliation under RCW 18.51 would be futile. 19

20 3 Plaintiff does not address any other aspect of the definition of a nursing home. See RCW 18.51.010(3) (“‘Nursing home’ means any home, place or institution which operates or maintains facilities providing convalescent or chronic care, or both, for a period in excess of twenty-four 21 consecutive hours for three or more patients not related by blood or marriage to the operator, who by reason of illness or infirmity, are unable properly to care for themselves. Convalescent and chronic care 22 may include but not be limited to any or all procedures commonly employed in waiting on the sick, such as administration of medicines, preparation of special diets, giving of bedside nursing care, application of 23 dressings and bandages, and carrying out of treatment prescribed by a duly licensed practitioner of the healing arts. It may also include care of mentally incompetent persons. It may also include community- based care. . . .) (emphasis added) 1 D. 42 U.S.C. § 1981 2 Plaintiff, finally, seeks to amend her Complaint with an allegation under 42 U.S.C. § 3 1981. She asserts her entitlement to pursue a retaliation claim under § 1981 because retaliation 4 is a form of discrimination, and because § 1981 prohibits retaliation in both public and private

5 employment. Dkt. 37-1, ¶4.19 (citing Gomez-Perez v. Potter, 553 U.S. 474 (2008), and Karim- 6 Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 625 (9th Cir. 1988)). She alleges MDC is 7 liable for punitive damages under § 1981 due to its “reckless disregard of her reporting of unsafe 8 conditions for patients, including possible spoilation of evidence.” Id., ¶4.20. 9 As suggested by MDC, there appear to be several problems with the proposed § 1981 10 claim. The Court, however, need only address a fundamental deficiency. That is, to prevail on a 11 § 1981 claim, “a plaintiff must initially plead and ultimately prove that, but for race, [plaintiff] 12 would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat’l Ass’n of 13 African American-Owned Media, 589 U.S. ___, 140 S.Ct. 1009, 1019 (2020) (emphasis added). 14 Accord Evans v. McKay, 869 F.2d 1341, 1344 (9th Cir. 1989) (in a § 1981 action, a plaintiff

15 must show intentional discrimination on account of race). See also Saint Francis College v. Al– 16 Khazraji, 481 U.S. 604, 609 (1987) (“Although § 1981 does not itself use the word ‘race,’ the 17 Court has construed the section to forbid all ‘racial’ discrimination in the making of private as 18 well as public contracts.”). Because Plaintiff does not allege or identify facts supporting an 19 allegation of retaliation or other discrimination associated with her race, see Dkts. 1-2 & 37-1, a 20 claim under § 1981 would be futile. 21 CONCLUSION 22 The Court, in sum, finds the proposed amendment of the Complaint would be futile. The 23 futility alone serves to justify denial of the motion to amend. Plaintiff’s Motion to Amend, Dkt. 1 37, is therefore DENIED. The Clerk is directed to send copies of this order to the parties and to 2 the Honorable John C. Coughenour. 3 Dated this 16th day of October, 2023. 4

5 A 6 S. KATE VAUGHAN United States Magistrate Judge 7

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