Rispoli v. King County et al

Filing 10

ORDER granting dft's 4 Motion to Dismiss for Failure to State a Claim; pltf's complaint is dismissed with leave to amend within 30 days by Judge Ricardo S Martinez.(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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Case No. C14-cv-00395RSM

KAREN RISPOLI

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v.

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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

Plaintiff,

KING COUNTY, a Washington municipal
corporation; KING COUNTY
DEPARTMENT OF TRANSPORTATION,
METRO TRANSIT DIVISION.
Defendants.
THIS MATTER comes before the Court upon Motion to Dismiss for Failure to State a
Claim on which Relief Can be Granted by Defendant King County (hereinafter the “County”)

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Dkt. # 4. Having considered Plaintiff’s Complaint, Defendant’s moving papers and Plaintiff’s

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opposition thereto, as well as applicable case law, the Court grants Defendant’s Motion and

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dismisses Plaintiff’s Complaint with leave to amend for the reasons stated herein.

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BACKGROUND

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Plaintiff Karen Rispoli filed the instant Complaint against Defendants the County and

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King County Department of Transportation, Metro Transit Division (hereinafter, “Metro”),

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asserting five causes of action: (1) sexual harassment and discrimination in violation of the

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Washington Law Against Discrimination (“WLAD”), RCW 49.60, (2) intentional infliction of

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emotional distress, (3) negligent infliction of emotional distress, (4) negligent supervision and
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS — 1

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retention, and (5) denial of equal protection in violation of 42 U.S.C. § 1983. See Dkt. # 1, Ex. A

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(Compl.). The County timely removed the action to this Court on this basis of its federal question

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jurisdiction over Plaintiff’s § 1983 claim and its supplemental jurisdiction over Plaintiff’s state

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law claims. See Dkt. # 1.

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The Complaint alleges that Plaintiff is and has been an employee of Metro for the past

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several years. Compl., ¶ 3.1. It asserts that throughout her employment, Plaintiff “has been the

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recipient of unwelcome and inappropriate sexual comments from male co-workers” and that she

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“has been harrassed, including sexually harrased, and discriminated against based on her gender

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and sexual orientation” and subject to a hostile and discriminatory work environment Id. at ¶¶

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3.2, 3.3. Plaintiff asserts that Metro failed to take remedial actions against Plaintiff’s male co-

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workers after receiving Plaintiff’s complaints about their offending conduct. Id. at ¶¶ 3.4, 3.5.

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She further asserts that Metro unlawfully retaliated against her in response to unspecified

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protected activity, including her opposition to practices in contravention of the WLAD. Id. at ¶

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3.6. As a consequence, she has allegedly suffered adverse employment actions. Id. The

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Complaint contains no further factual detail concerning the nature of the offending activity, its

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timeframe, its perpetrators, Plaintiff’s protected activity, or the alleged adverse employment

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actions that she suffered.

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LEGAL STANDARD

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To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

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factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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Where the plaintiff fails to “nudge[] [her] claims across the line from conceivable to plausible,

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[her] complaint must be dismissed." Twombly, 550 U.S. at 570. A claim is facially plausible if
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS — 2

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the plaintiff has pled “factual content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Threadbare recitals

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of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Id. (citing Twombly, 550 U.S. at 555). In other words, the plaintiff must provide grounds for her

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entitlement to relief that amount to more than labels or conclusions and extend beyond a

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formulaic recitation of the elements of a cause of action. Twombly, 550 U.S. at 545. In making a

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Rule 12(b)(6) assessment, the court accepts all facts alleged in the complaint as true, and makes

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all inferences in the light most favorable to the non-moving party. Baker v. Riverside County

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Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted).

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“The court should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P.

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15(a)(2). Where claims are dismissed under Rule 12(b)(6), the court “should grant leave to

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amend…unless it determines that the pleading could not possibly be cured by the allegation of

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other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Leave to amend need not be

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granted, and dismissal may be ordered with prejudice, if amendment would be futile. Steckman v.

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Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998); see also Lucas v. Dept. of Corrections,
66 F.3d 245, 248 (9th Cir. 1995).

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DISCUSSION
The Court agrees with the County that Plaintiff’s Complaint is subject to dismissal for

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failure to plead sufficient facts to support a plausible claim to relief. Plaintiff’s pleading consists

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entirely of conclusory allegations and recitation of the elements of the causes of action she

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asserts, which do not suffice to establish facial plausibility. See Iqbal, 556 U.S. at 678. Though

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the notice pleading standards of Federal Rule of Civil Procedure 8(a) are liberal ones, they are

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not without teeth and cannot be met through the bare assertion of legal conclusions. Rule 8
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS — 3

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requires that Plaintiff give fair notice not only of her claims, but of the basis for them and the

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“grounds upon which they rest.” Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002). To do so,

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she must provide “enough facts to state a claim that is plausible on its face” and “nudge [her]

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claims across the line from conceivable to plausible.” Iqbal, 556 U.S. at 570 (discussing

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Swierkiewicz, 534 U.S. 506). Plaintiff’s failure to provide any facts about the allegedly harrasing

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conduct, her protected activity, and the adverse employment actions she suffered robs

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Defendants of notice of the grounds of her claims and an opportunity to meaningfully respond. It

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also precludes the Court from assessing whether her claims have facial plausibility.

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On response, Plaintiff accused Defendants of attempting to apply a heightened pleading

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standard to her claims. See Dkt. # 6, p. 1. Plaintiff’s accusation is based on a miscomprehension

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of Rule 8’s requirements. In Swierkiewicz, the Supreme Court rejected the application of

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heightened pleading standards – such as those applicable to fraud claims under Rule 9 – to a

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work place discrimination complaint in holding that such a complaint need not contain specific

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facts establishing a prima facie case in order to survive a motion to dismiss. Swierkiewicz, 534

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U.S. at 508. Iqbal later made clear that its holding in Swierkiewicz did not abbrogate Rule 8’s

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requirement for fact-based pleadings in discrimination cases. The Court clarified that the Second

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Circuit had erred in requiring Swierkiewicz to “allege certain additional facts” that may have

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been needed at the trial stage, beyond the factual details provided in his complaint of the events

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leading to his termination, relevant dates, and ages and nationalities of relevant persons involved
in his termination. Id. Here, Plaintiff has provided no such facts.

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For instance, to support a claim for hostile work environment, Plaintiff must show that

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she suffered harrasment that was (1) unwelcome, (2) occurred because of protected status, (3)

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affects the terms and conditions of her employment, and (4) is imputable to the employer.
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS — 4

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Glasgow c. Georgia-Pacific Corp., 103 Wash. 2d 401, 406-07 (1985). To satisfy the third

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element, it is not sufficient that the conduct is merely offensive; it must be sufficiently severe to

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alter Plaintiff’s working conditions. See Crownover v. State ex rel. Dept’s of Transp., 165 Wn.

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App. 131, 145 (2001). To support a retaliation claim, she must show that she (1) engaged in

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statutorily protected activity, (2) suffered cognizable adverse employment action, meaning a

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tangible change in employment status, and (3) that there is a causal link between the activity and

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the adverse action. See Short v. Battle Ground Sch. Dist. , 169 Wn. App. 188, 205 (2012);

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Crownover, 165 Wn. App. at 148-49.

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Plaintiff has not provided facts to support these elements. She has provided no factual

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details to make out a hostile work environment claim beyond alleging that she suffered

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unspecified forms of offensive conduct on unspecified dates and by unspecified persons and that

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Defendants failed to respond to her complaints. She similarly has failed to notify Defendants of

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any facts as to the type and timing of protected activity she engaged in and allegedly adverse

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employment actions she suffered. Further, Plaintiff cannot show that she has pled a plausible

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aiding and abbetting claim under RCW 49.60.220, where she has not named or otherwise

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identified in the complaint any individual supervisors who affirmatively engaged in

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discriminatory conduct. Brown v. Scott Paper Worldwise Co., 143 Wn.2d 349, 360 n. 3 (2001).

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Again, Plaintiff cannot meet the albeit liberal standards of notice pleading by simply listing

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causes of actions and reciting their elements. While her factual allegations are entitled to a
presumption of accuracy, her legal conclusions are not.

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Particularly problematic is Plaintiff’s complete failure to allege facts to support the claim

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on which federal jurisdiciton rests. To state a claim under 42 U.S.C. § 1983 for a violation of the

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Equal Protection Clause, Plaintiff “must show that the defendants acted with an intent or purpose
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS — 5

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to discriminate against [her] based upon membership in a protected class.” Barrenv. Harrington,

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152 F.3d 1193, 1194 (9th Cir. 1998). As the Ninth Circuit instructed in dismissing the complaint

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in Barren, plaintiff “must allege facts, not simply conclusions, that show than an individual was

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personally involved in the deprivation of [her] civil rights.” Id. Rispoli has again failed to allege

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any facts regarding the involvement of any individuals and the nature of the discrimination. She

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has also failed to plead any facts to support a showing that Defendants acted with the requisite

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intent.

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Finally, Plaintiff concedes that she has failed to sufficiently plead claims of intentional
and negligent infliction of emotional distress. To state a claim for the tort of outrage, Plaintiff

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must allege conduct predicated on behavior that is “so outreageous in character and so exterme

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in degree, as to go beyond all possible bounds of decency.” Grimbsy v. Samson, 85 Wn.2d 52, 59

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(1975) (internal quotations ommited). The tort does not embrace “mere insults, threats,

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annoyances, petty oppressions, or other trivialities.” Kloepfel v. Bokor, 149 Wn.2d 192, 196

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(2003) (quoting Grimsby, 85 Wn. 2d at 59). The Court agrees with the County that the absence

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of factual detail in Plaintiff’s Complaint makes it impossible to assess whether the conduct on

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which her claim is predicated meets this standard. Further, Plaintiff has failed to provide a

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factual basis for her emotional distress claims separate from that for her discrimination claims.

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Under Washington law, “a separate claim for emotional distress is not compensable when the

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only factual basis for emotional distress was the discrimination claim.” Chea . Men’s Wearhouse,

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Inc., 85 Wash.App.405 (1997); see also Haubry v. Snow, 106 Wn.App. 666, 678 (2002);

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Musselman v. Nitchman, 2005 WL 1657077, * 7 (W.D. Wash. 2005) (dismissing negligent

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infliction of emotional distress claim on summary judgment for failure to plead a separate factual

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basis from his retaliation claim).
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS — 6

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Having determined that each of Plaintiff’s claims must be dismissed for failure to meet

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the requisite pleading standards, the Court must determine the appropriate remedy. While the

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Court may dismiss with prejudice where amendment would be futile, the lack of factual detail in

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Plaintiff’s pleadings makes it particularly difficult to make this assessment. In light of the liberal

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policy favoring amendment and the possibility that Plaintiff may be able to bolster her legal

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conclusions with facts, see Fed. R. Civ. P. 15, the Court shall dismiss without prejudice and with

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leave to amend. However, failure to provide the requisite factual detail will subject any amended

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complaint to dismissal with prejudice. So too, Plaintiff should only replead her emotional

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distress claims if she can in good faith show that they rely on a separate factual basis; otherwise,

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they too shall be dismissed with prejudice. In light of the extension that Plaintiff has already

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received to respond to Defendant’s motion, balanced against the demands of the holiday season,

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the Court determines that a 30-day deadline for repleading is appropriate.

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CONCLUSION
For the reasons stated herein, the Court hereby ORDERS that Defendant’s Motion to

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Dismiss (Dkt. # 4) is GRANTED. Plaintiff’s Complaint is DISMISSED in its entirety without

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prejudice and with leave to amend. Plaintiff shall file an amended complaint within thirty (30)

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days of the entry of this Order, which includes sufficient facts to adequately support her claims.

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The failure to comply with this deadline and with Rule 8 pleading standards shall result in the

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dismissal of Plaintiff’s claims with prejudice.
DATED this 2 day of December 2014

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A

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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS — 7