Topolski v. Washington State Department of Licensing

Opinion

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4 5 UNITED STATES DISTRICT COURT AT TACOMA 7 PETER TOPOLSKI, Case No. 3:24-cv-05878-TMC 8 Plaintiff, ORDER GRANTING MOTION FOR 9 SUMMARY JUDGMENT v. 10 WASHINGTON STATE DEPARTMENT 11 OF LICENSING, 12 Defendant. 13

14 I. INTRODUCTION 15 Peter Topolski was employed by the Washington Department of Licensing (“the 16 Department”) for several years. In 2021, the Department, following a state proclamation during 17 the COVID-19 pandemic, instituted a vaccine requirement for its employees. Mr. Topolski 18 applied for a religious exemption, explaining that he could not get vaccinated because of his 19 faith. The Department granted the exemption but found it could not accommodate 20 Mr. Topolski’s request to work remotely. Ultimately, the Department decided to end 21 Mr. Topolski’s employment. 22 Mr. Topolski sued the Department, alleging federal and state claims. Dkt 1. The 23 Department moved to dismiss Mr. Topolski’s claims, arguing that the statute of limitations had 24 1 run. Dkt. 13. The Court agreed, but allowed Mr. Topolski’s Title VII claim, which the 2 Department had failed to address, to proceed. Dkt. 17. The Department now moves for summary 3 judgment on Mr. Topolski’s Title VII claim, arguing that he failed to exhaust his pre-litigation

4 remedies and thus the claim must be dismissed. Dkt. 31. 5 Title VII requires a plaintiff to exhaust administrative remedies before filing a claim. 6 Mr. Topolski has not done so here. Accordingly, the Court GRANTS the summary judgment 7 motion. The case is DISMISSED with prejudice. Peter Topolski began working for the Department on July 17, 2018. Dkt. 1 ¶ 5.1. 9 Mr. Topolski was a “Licensing Services Representative” in the Kent Licensing Service Office. 10 Id. Mr. Topolski “remained employed” by the Department while the Service Office was closed in 11 March 2020 per Washington’s “Stay Home, Stay Healthy” COVID-19 pandemic order. Id. ¶ 5.4. 12 On August 9, 2021, then-Washington Governor Jay Inslee issued “Proclamation 21.14.” 13 Id. ¶ 5.5; Dkt 1-2 at 2. The Proclamation required that any employee of a state agency get 14 vaccinated for COVID-19 by October 18, 2021. Dkt. 1 ¶ 5.5; Dkt 1-2 at 2. Following the 15 Proclamation, the Department’s Interim Deputy Director and Human Resources Director Laurie 16 Milligan sent an email that the Department would require all employees to obtain and provide 17 proof of vaccination. Dkt. 1 ¶ 5.6; Dkt 1-2 at 2. The deadline for vaccination was October 18, 18 2021. Dkt 1-2 at 2. On August 27, Milligan sent an email stating that religious exemptions would 19 be granted as necessary. Dkt. 1 ¶ 5.11; Dkt 1-2 at 14. The email also noted that employees who 20 were not vaccinated or did not have an approved exemption would no longer be employed on 21 October 18, 2021. Id.; Dkt 1-2 at 14. Requests for exemptions were to be submitted by October 22 4, 2021. Dkt 1-2 at 15. 23 24 1 Mr. Topolski requested more information about the accommodation process. Dkt. 1 2 ¶ 5.12; Dkt 1-2 at 17. He did not receive a reply for a week. Id. The reply explained that Human 3 Resources’ workload had grown enormously because of the vaccination accommodation process,

4 and the Department could not offer Mr. Topolski advice on his accommodation request at that 5 time. Dkt 1-2 at 17. 6 Still, on September 14, 2021, Mr. Topolski requested a religious exemption. Dkt. 1 7 ¶ 5.13; Dkt. 1-2 at 20–24. His request was approved soon after. Id. ¶ 5.15; Dkt 1-2 at 29, 31. But 8 despite approving his religious exemption, Human Resources informed Mr. Topolski that they 9 still needed to determine whether the Department could reasonably accommodate his exemption. 10 Dkt. 1 ¶ 5.16; Dkt 1-2 at 31. 11 The Department held a Vaccine Mandate Accommodation Decision Meeting with 12 Mr. Topolski on September 30, 2021. Dkt. 1 ¶ 5.18. Mr. Topolski met virtually with Assistant

13 Director of Customer Relations Kim Zabel and Administrator Whitney Montemarano. Id. ¶ 5.20. 14 Mr. Topolski described the meeting as “merely a courtesy conversation that an accommodation 15 decision had already been made–namely that the Defendant would grant no accommodation.” Id. 16 Zabel and Montemarano told Mr. Topolski that they could not accommodate him, but that “if he 17 changed his mind the separation notice would be rescinded if the proof of vaccination were 18 received by October 4, 2021.” Id. Mr. Topolski explained that he offered “other possible 19 accommodations” that Zabel and Montemarano rejected. Id. 20 After the meeting, Mr. Topolski requested his union file a grievance on his behalf. Id. 21 ¶ 5.21. The union sent the grievance to the Department on September 30. Dkt. 1-2 at 69, 72. 22 On October 1, 2021, the Department sent Mr. Topolski and his supervisor a separation of

23 employment notification. Dkt. 1 ¶ 5.22; Dkt. 1-2 at 75. The Department attached a letter stating 24 that it had found that Mr. Topolski had a sincerely held religious brief exempting him from the 1 vaccination requirement. Dkt. 1 ¶ 5.22; Dkt. 1-2 at 77–78. But the letter also explained that the 2 Department could not provide an accommodation because his position required that he be 3 physically present in a Department of Licensing Facility. Dkt. 1 ¶ 5.22; Dkt. 1-2 at 79–80.

4 On November 10, 2021, Mr. Topolski met virtually with Milligan and Labor and 5 Operations Manager Wendy Bersano to review his grievance. Dkt. 1 ¶ 5.23. Milligan and 6 Bersano explained that telework would be the only possible accommodation, but “all telework 7 had been filled” and “no reassignments were available[.]” Id. Mr. Topolski noted that the 8 Department had not considered increasing the number of telework positions available so that 9 they might be able to accommodate him. Id. 10 Ultimately, Mr. Topolski was let go from the Department. He explains that he has 11 “experienced adverse mental and emotional health effects” as he “recognized he could not in 12 good conscience take part in the vaccine program and experienced severe anxiety at the thought

13 and reality of loss of livelihood.” Id. ¶ 5.24. He also “suffered significant financial injury as a 14 result of his employment termination.” Id. ¶ 5.25. 15 On October 16, 2024, Mr. Topolski sued the Department of Licensing. See generally id. 16 He brought claims against the Department for violating his right to privacy under the Fourth 17 Amendment to the United States Constitution and Article I, Section 7 of the Washington 18 Constitution, id. ¶ 7.1; violating his due process rights under the Fourteenth Amendment of the 19 United States Constitution, id. ¶¶ 7.2, 7.4; violating the federal PREP Act Emergency Use 20 Authorization Statutes and Washington Informed Consent Statutes, id. ¶ 7.3; violating his right 21 to freely exercise his religion under the First Amendment to the United States Constitution, id. 22 ¶ 7.5; violating Title VII of the Civil Rights Act of 1964, id. ¶¶ 7.5, 7.10; and violating the

23 Occupational Safety and Health Act (OSHA), id. ¶ 7.6. Mr. Topolski seeks lost wages, emotional 24 harm damages, and punitive damages. Id. ¶¶ 9.1–9.5. 1 On December 23, 2024, the Department moved to dismiss all of Mr. Topolski’s claims. 2 Dkt. 13. The Department argued that Mr. Topolski’s federal constitutional claims were barred by 3 the statute of limitations and any remaining claims fail as a matter of law. Id. at 5, 6–15. The

4 Court agreed and dismissed all but Mr. Topolski’s Title VII claim. Dkt. 17 at 2, 9, 10–12. 5 The Department then moved for summary judgment on the remaining Title VII claim, 6 arguing that Mr. Topolski had failed to satisfy the exhaustion requirement of the statute. Dkt. 31. 7 Mr. Topolski did not file a response. The briefing is complete, and the motion is ripe for the 8 Court’s consideration. “The court shall grant summary judgment if the movant shows that there is no genuine 10 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 11 Civ. P. 56(a). “Where the moving party has the burden of proof at trial (such as a defendant 12 seeking summary judgment based on an affirmative defense) he must demonstrate that no 13 reasonable trier of fact could find against him.” Intelligent Peripheral Devices, Inc. v. SmartPad, 14 Inc., No. C95-4479-FMS, 1998 WL 754606, at *2 (N.D. Cal. Oct. 26, 1998) (citing Calderone v. 15 United States, 799 F.2d 254, 259 (6th Cir. 1986)); see also Clark v. Capital Credit & Collection 16 Servs., 460 F.3d 1162, 1177 (9th Cir. 2006) (recognizing that a defendant bears the burden of 17 proof at summary judgment with respect to an affirmative defense). A dispute as to a material 18 fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the 19 nonmoving party.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) 20 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 21 Conclusory, nonspecific statements in affidavits are not sufficient, and “missing facts” 22 will not be presumed. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990). Generally, 23 “‘[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn 24 1 in his favor.’” Tolan v. Cotton, 572 U.S. 650, 651 (2014) (per curiam) (quoting Anderson, 477 2 U.S. at 255). “Credibility determinations, the weighing of the evidence, and the drawing of 3 legitimate inferences from the facts are jury functions, not those of a judge.” Anderson, 477 U.S.

4 at 255. Consequently, in ruling on a motion for summary judgment, “a District Court must 5 resolve any factual issues of controversy in favor of the non-moving party . . . .” Lujan, 497 U.S. 6 at 888 (internal quotations omitted). To bring a Title VII claim in district court, a plaintiff must first exhaust administrative 8 remedies. Fort Bend Cnty., Tex. v. Davis, 587 U.S. 541, 543 (2019) (citing 42 U.S.C. § 2000e- 9 5(e)(1), (f)(1)). To exhaust administrative remedies, the plaintiff must first file an administrative 10 complaint with the federal Equal Employment Opportunity Commission (“EEOC”). Id. 11 “Allegations . . . not included in the plaintiff’s administrative charge may not be considered by a 12 federal court unless the new claims are like or reasonably related to the allegations contained in 13 the EEOC charge.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002), as 14 amended (Feb. 20, 2002) (citation modified). 15 Although not a jurisdictional requirement, the timely filing of an administrative 16 complaint is a prerequisite to bringing a civil action for damages under Title VII. Fort Bend, 587 17 U.S. at 551. There are thus “effectively two limitations periods for Title VII claims.” Scott v. 18 Gino Morena Enters., LLC, 888 F.3d 1101, 1106 (9th Cir. 2018). First, a claimant must exhaust 19 administrative remedies by filing a charge with the EEOC or an equivalent state agency and 20 receiving a right-to-sue letter. Id. (first citing 42 U.S.C. § 2000e-5(e)(1); and then citing Jasch v. 21 Potter, 302 F.3d 1092, 1094 (9th Cir. 2002)). “Generally, a Title VII plaintiff must file an 22 administrative charge with the EEOC within 180 days of the last act of discrimination.” 23 MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081–82 (9th Cir. 2006) (citing 42 U.S.C. 24 1 § 2000e-5(e)(1)). “However, the limitations period is extended to 300 days if the plaintiff first 2 institutes proceedings with a ‘State or local agency with authority to grant or seek relief from 3 such practice.’” Id. at 1082 (quoting § 2000e-5(e)(1)). “An individual’s failure to file a charge

4 with the agency within this time frame will usually operate to bar that person from bringing a 5 lawsuit for failure to exhaust their administrative remedies.” Arizona ex rel. Horne v. Geo Grp., 6 Inc., 816 F.3d 1189, 1202 (9th Cir. 2016) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 7 385, 393–94 (1982)). Second, after exhausting administrative remedies and receiving a “right-to- 8 sue” notice, a claimant has 90 days to file a civil action. Scott, 888 F.3d at 1106 (citing 42 U.S.C. 9 § 2000e-5(f)(1)). 10 “Title VII’s exhaustion requirement is akin to a statute of limitations[.]” Dilettoso v. 11 Potter, 243 Fed. App’x 269, 271 (9th Cir. 2007) (citing Zipes, 455 U.S. at 393). Thus, “summary 12 judgment based on a failure to exhaust constitutes a judgment on the merits, absent a showing of

13 unfairness.” Id. at 271–72 (internal citations omitted). 14 Here, Mr. Topolski did not ever file an EEOC complaint regarding what he alleges was a 15 violation of his rights under Title VII. “The failure to exhaust administrative remedies is a fatal 16 defect which cannot be cured.” Matejka v. Blue Origin Enters. LP, No. 2:25-CV-00199-BAT, 17 2025 WL 1635228, at *8 (W.D. Wash. June 9, 2025). In a declaration submitted with their 18 summary judgment motion, defense counsel attests that they made a request for Mr. Topolski’s 19 charge file. Dkt. 32 ¶ 3; see also id. at 5. The EEOC responded stating, “we do not have record 20 of a Peter Topolski filing a charge with the EEOC.” Dkt. 32 ¶ 3; see also id. at 4. Similarly, 21 defense counsel attested that they made a public records request with the Washington State 22 Human Rights Commission (WSHRC), the relevant state agency, for “any communications,

23 correspondence, or complaint from or referencing Peter Topolski[.]” Dkt. 32 ¶ 4. WSHRC 24 1 responded that the agency “does not possess any records responsive to [the] request.” Id.; see 2 also id. at 7. 3 Additionally, defense counsel served a series of requests for admissions on Mr. Topolski.

4 Dkt. 32 at 9. Though Mr. Topolski denied that he did not contact the EEOC verbally, such as a 5 phone call, he admitted that he had not reached out in writing or sent any documents regarding 6 the allegations. Id. at 11. Mr. Topolski conceded too that he did not obtain a right to sue letter 7 from the EEOC. Id. His answers for WSHRC were the same. Id. at 11–12. 8 Whether a plaintiff in a Title VII action has timely exhausted his administrative remedies 9 “is an affirmative defense, [so] the defendant bears the burden of pleading and proving it.” Kraus 10 v. Presidio Tr. Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1046 n.7 (9th Cir. 11 2009) (citation omitted). Because the Department bears the burden of proof to establish failure to 12 exhaust, to prevail on this defense at summary judgment the Department must show that “no

13 reasonable trier of fact could find against” the agency. Intelligent Peripheral Devices, 1998 WL 14 754606, at *2. 15 Here, the Department has met its burden to demonstrate that Mr. Topolski failed to 16 exhaust his claim with EEOC prior to initiating this case. As explained above, Mr. Topolski has 17 conceded that he did not exhaust his claims with the EEOC. Dkt. 32 at 9–12. And none of the 18 relevant agencies possess any record of Mr. Topolski having attempted to do so. Id. at 4, 5, 7. 19 Mr. Topolski has not responded and thus has not refuted these claims. No reasonable trier of fact 20 could find that Mr. Topolski exhausted his administrative remedies before initiating this case. 21 See Intelligent Peripheral Devices, 1998 WL 754606, at *2; see also Jones v. Rabanco, Ltd., 439 22 F. Supp. 2d 1149, 1160 (W.D. Wash. 2006) (dismissing case at summary judgment where the

23 plaintiff failed to make a filing with the EEOC before filing case); Dumbaugh v. Kasson, No. 24 C08-5469RBL, 2009 WL 3186107, at *4 (W.D. Wash. Oct. 1, 2009) (similar). l Accordingly, Mr. Topolski’s Title VII claim fails, and the Department’s motion for 2 summary judgment is GRANTED. 3 Vv. CONCLUSION 4 For these reasons, the motion for summary judgment, Dkt. 31, is GRANTED. The case is

5 DISMISSED with prejudice. 6 The Clerk is directed to send uncertified copies of this Order to all counsel of record and

7 || to any party appearing pro se at said party’s last known address.

g Dated this 9th day of July, 2025.

9 Z Ca 10 Tiffany MI. Cartwright United States District Judge 1] 12 13 14 15 16 17 18 19 20 21 22 23 24