Riser v. Washington State University et al

Filing 87

ORDER DENYING PLAINTIFFS MOTIONS FOR A MANDATORY INJUNCTION AND TO EXPEDITE. Plaintiffs Motion for a Mandatory Injunction to Preserve the Status Quo Ante ECF No. 78 is DENIED. Plaintiffs Motion to Expedite ECF No. 79 is DENIED AS MOOT. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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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
Plaintiff,

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ORDER DENYING PLAINTIFF’S
MOTIONS FOR A MANDATORY
INJUNCTION AND TO EXPEDITE

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

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Defendants.
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BEFORE THE COURT are Plaintiff Darryl W. Riser’s Motion for a

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Mandatory Injunction to Preserve the Status Quo Ante (ECF No. 78) and

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corresponding Motion to Expedite (ECF No. 79). The motions were submitted for

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consideration without a request for oral argument. The Court has reviewed the

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record and files herein, and is fully informed. For the reasons discussed below,

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Plaintiff’s Motion for a Mandatory Injunction to Preserve the Status Quo Ante

ORDER DENYING PLAINTIFF’S MOTIONS FOR A MANDATORY
INJUNCTION AND TO EXPEDITE ~ 1

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(ECF No. 78) is denied. Plaintiff’s Motion to Expedite (ECF No. 79) is denied as

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moot.

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Plaintiff requests the Court enter an expedited order for a mandatory

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injunction to preserve the status que ante ordering Defendant to “undo” Plaintiff’s

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termination and not engage in adverse actions against Plaintiff. ECF No. 78 at 1.

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“A plaintiff seeking a preliminary injunction must establish that he is likely

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to succeed on the merits, that he is likely to suffer irreparable harm in the absence

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of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555

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U.S. 7, 20 (2008). “A prohibitory injunction preserves the status quo. A

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mandatory injunction goes well beyond simply maintaining the status quo

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pendente lite and is particularly disfavored.” Stanley v. Univ. of S. California, 13

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F.3d 1313, 1320 (9th Cir. 1994) (citations, internal quotations and brackets

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omitted). A “district court should deny such relief ‘unless the facts and law clearly

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favor the moving party.’” Id. (quoting Anderson v. United States, 612 F.2d 1112,

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1114 (9th Cir. 1979)).

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Plaintiff asserts there is a substantial likelihood of success on the merits

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because Plaintiff was “approved for unemployment compensation” based upon a

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finding that Plaintiff was not “fired for misconduct”, as defined under the

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ORDER DENYING PLAINTIFF’S MOTIONS FOR A MANDATORY
INJUNCTION AND TO EXPEDITE ~ 2

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regulations governing unemployment. ECF Nos. 78 at 6-7, 84 at 3. Plaintiff also

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argues:

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Plaintiff engaged in “protected activities”: in October and November 2017,
reported Ethics Violations and was granted Whistleblower Protection [RCW
42.40] and on November 8, 2017, Plaintiff filed an Employment
Discrimination Complaint at the WSHRC. December 2017 and January
2018, Defendant WSU conspired a “pretextual constructive discharge” to
retaliate against Plaintiff for engaging in “protected activities”. Defendant
WSU claimed: “insubordination”, “quality of work”, and “failure to follow
directives”. Prior to December 2017, there were no complaints about
Plaintiff’s job performance, professionalism, or quality of work.

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ECF No. 78 at 5-6 (emphasis in original). Plaintiff does not put forward any

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additional argument as to this point. See ECF No. 78.

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This is insufficient to meet the burden of demonstrating likelihood of

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success. First, the finding that Plaintiff was not “fired for misconduct” does not

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imply Defendant improperly terminated Plaintiff. The term “fired for misconduct”

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is defined in Revised Code of Washington (RCW) § 50.04.294 and is limited in

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application to the unemployment context. Even if Plaintiff was not “fired for

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misconduct” in the ordinary sense of the term, Defendant could have fired Plaintiff

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(as an at-will employee) without a showing of misconduct. To be actionable,

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Plaintiff must demonstrate Defendant terminated Plaintiff for an inappropriate

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reason, and Plaintiff has not met this burden in his Motion (ECF No. 78).

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Second, Plaintiff’s bare conclusion that Defendants retaliated against
Plaintiff is not enough to demonstrate a likelihood of success. See Menefield v.

ORDER DENYING PLAINTIFF’S MOTIONS FOR A MANDATORY
INJUNCTION AND TO EXPEDITE ~ 3

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Stradley, 996 F.2d 1226 (9th Cir. 1993) (“Bare allegations of retaliation will not

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suffice, by themselves, to sustain a claim of unlawful retaliation.”). Although

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Plaintiff argues Defendants did not have any complaints about Plaintiff’s job

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performance, professionalism, or quality of work before December 2017, ECF No.

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78 at 2, the documentation submitted by Plaintiff supports the legitimacy of at least

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some of the proffered reasons for Plaintiff’s termination and these reasons, if valid,

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explain away the timing (for example, he was put on leave and then let go after he

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demanded his superiors and the president of WSU resign). Besides the timing,

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Plaintiff has not presented any evidence Defendant WSU or its agents retaliated

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against Plaintiff. Plaintiff has failed to present a clear showing he is entitled to

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relief. Stanley, 13 F.3d at 1320. The motion is thus denied.

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ACCORDINGLY, IT IS HEREBY ORDERED:

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1.

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Plaintiff’s Motion for a Mandatory Injunction to Preserve the Status
Quo Ante (ECF No. 78) is DENIED.

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2.

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The District Court Executive is directed to enter this Order and furnish

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Plaintiff’s Motion to Expedite (ECF No. 79) is DENIED AS MOOT.

copies to the parties.
DATED October 15, 2018.

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THOMAS O. RICE
Chief United States District Judge
ORDER DENYING PLAINTIFF’S MOTIONS FOR A MANDATORY
INJUNCTION AND TO EXPEDITE ~ 4