Riser v. Washington State University et al

Filing 23

ORDER denying Plaintiff's 3 19 Request for Temporary Restraining Order and Preliminary Injunction. Signed by Chief Judge Thomas O. Rice. (BF, Paralegal)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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DARRYL W. RISER,
NO: 2:18-CV-0119-TOR

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Plaintiff,
v.
WASHINGTON STATE
UNIVERSITY, DON HOLBROOK,
BRIAN ALLAN DIXON, and RANDI
N. CROYLE,

ORDER DENYING PLAINTIFF’S
REQUEST FOR TEMPORARY
RESTRAINING ORDER AND
PRELIMINARY INJUNCTION

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Defendants.
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BEFORE THE COURT is Plaintiff Darryl W. Riser’s Motions for

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Temporary Restraining Order and a Preliminary Injunction (ECF Nos. 3; 19) filed

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April 6, 2018 and April 26, 2018, respectively. The motions were submitted for

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consideration without oral argument. The Court has reviewed the record and files

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herein, and is fully informed. For the reasons discussed below, the Motions are

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denied.

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ORDER DENYING PLAINTIFF’S REQUEST FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION ~ 1

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Pursuant to Federal Rule of Civil Procedure 65, a district court may (1)

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“issue a preliminary injunction only on notice to the adverse party” or (2) “issue a

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temporary restraining order without written or oral notice to the adverse party or its

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attorney only if: (A) specific facts in an affidavit or a verified complaint clearly

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show that immediate and irreparable injury, loss, or damage will result to the

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movant before the adverse party can be heard in opposition; and (B) the movant’s

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attorney certifies in writing any efforts made to give notice and the reasons why it

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should not be required.” “A plaintiff seeking a preliminary injunction must

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establish that he is likely to succeed on the merits, that he is likely to suffer

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irreparable harm in the absence of preliminary relief, that the balance of equities

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tips in his favor, and that an injunction is in the public interest.” Winter v. Nat.

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Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

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First, Plaintiff has not met the prerequisites for requesting a temporary

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restraining order. Plaintiff has not provided a certification describing any effort to

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give notice to the Defendants, nor was there any explanation as to why notice

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should not be required. Plaintiff’s request for a temporary restraining order thus

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must be denied.

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Second, Plaintiff has not demonstrated a likelihood of success in his request
for a preliminary injunction. Although Plaintiff was assigned whistleblower

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ORDER DENYING PLAINTIFF’S REQUEST FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION ~ 2

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status,1 Plaintiff has not submitted any evidence supporting his assertion that he

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was wrongly terminated for his whistleblower activities,2 which appears to be

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limited to criticisms of supervisors and other employees.3 Rather, the evidence

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submitted so far appears to support WSU’s decision to terminate Plaintiff for cause

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and that Plaintiff was accorded adequate notice and an opportunity to respond

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files a complaint with the appropriate ethics board shall be afforded the protection

Pursuant to Revised Code of Washington § 42.52.410, a state employee who

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afforded to a whistleblower under §§ 42.40.050 and 49.60.210(2), subject to the

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limitations of §§ 42.40.035 and 42.40.910.

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claims of discrimination and retaliation were unfounded).

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e.g., ECF No. 19 at 3, 5, 12, but Plaintiff has not explained what racial

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discrimination occurred, and the charging document (dated November 30, 2017),

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ECF No. 19-2, does not include any detail, either. Further, Plaintiff has not

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submitted a “Notice of Right to Sue” from the Equal Employment Opportunity

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Commission, as is required before filing suit for work-place race discrimination.

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Waters v. Heublein, Inc., 547 F.2d 466, 468 (9th Cir. 1976).

See ECF No. 19-9 (WSU Office of Equal Opportunity finding Plaintiff’s

Plaintiff repeatedly states that he has filed a race discrimination charge, see,

ORDER DENYING PLAINTIFF’S REQUEST FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION ~ 3

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despite Plaintiff’s status as an at-will employee,4 bearing in mind that “discharge of

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a public employee whose position is terminable at the will of the employer”

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generally does not implicate the due process clause because the employee has no

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property interest in the position.5 Bishop v. Wood, 426 U.S. 341, 348 (1976);

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Clements v. Airport Auth. of Washoe Cty., 69 F.3d 321, 331 (9th Cir. 1995).

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Plaintiff’s request for a preliminary injunction thus must be denied.

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for cause); 18-9 (termination letter); 18-30 (notice of counseling re: work-place

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deficiencies); 18-34 (WSU review of termination action); 18-37 (review of OEO

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final closing document); 19-9 (Office of Equal Opportunity closing document); 19-

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11 (WSU review of Office of Equal Opportunity closing document).

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this has no bearing on the request for extraordinary relief.

See, e.g., ECF Nos. 18-5 (notice of potential disciplinary action: termination

Plaintiff also references an unlawful search, see, e.g., ECF No. 19 at 5, but

ORDER DENYING PLAINTIFF’S REQUEST FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION ~ 4

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ACCORDINGLY, IT IS HEREBY ORDERED:
Plaintiff’s Motions for Temporary Restraining Order and a Preliminary
Injunction (ECF Nos. 3; 19) are DENIED.
The District Court Executive is directed to enter this Order and furnish
copies to the parties.
DATED May 9, 2018.

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THOMAS O. RICE
Chief United States District Judge

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ORDER DENYING PLAINTIFF’S REQUEST FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION ~ 5