Gamble v. Pacific Northwest Regional Council of Carpenters et al

Filing 36

ORDER granting dft's 32 Motion to dismiss plaintiff's second amended complaint by Judge Ricardo S Martinez.(RS)

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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON

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BRENT GAMBLE, an individual,
Plaintiff,

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v.
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PACIFIC NORTHWEST REGIONAL CONCIL
OF CARPENTERS; JIMMY MATTA, in his
official capacity as a representative of the
Regional Council; JOHN TORKELSON, in his
official capacity as representative of the Regional
Council and DOES 1-50, inclusive,

CASE NO. C14-455 RSM
ORDER GRANTING MOTION TO
DISMISS PLAINTIFF’S SECOND
AMENDED COMPLAINT

Defendants.
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This matter comes before the Court upon Motion to Dismiss Plaintiff’s Second

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Amended Complaint by Defendant Pacific Northwest Regional Council of Carpenters

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(
“PNWRCC Dkt. # 32. This Court granted PNWRCC’s prior motion to dismiss Plaintiff’s first
”).

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amended complaint, albeit with leave to amend his disparate treatment and retaliation claims
brought under state and federal law. Having considered the parties’ memoranda, the relevant

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record, and oral arguments by counsel, the Court grants Defendant’s Motion and now
dismisses Plaintiff’s Second Amended Complaint with prejudice.
BACKGROUND
The facts as asserted in Plaintiff’s Second Amended Complaint are substantially similar
to those set forth in the Court’s prior Order of dismissal. See Dkt. # 12. Plaintiff Brent Gamble

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ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT- 1

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filed this action on March 28, 2014 against the PNWRCC, as well as two of its named and

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numerous of its unnamed representatives and employees, claiming that he was retaliated

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against, wrongfully terminated, and subjected to a hostile work environment on account of his

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race and participation in protected activity. See Dkt. # 1. Mr. Gamble’s Second Amended
Complaint alleges that his employment with the PNWRCC began on November 11, 2012 as a

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Representative in the PNWRCC Union headquarters in Kent, WA, where he was placed on 90
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days probationary employment status after which time he would become fully vested in his
position. See Dkt. # 27 (SAC at ¶¶ 11-13. Mr. Gamble asserts that“he had significant periods
“ ”)

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of satisfactory, exceeding expectations, competent and diligent performance throughout the
”

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probationary period. Id. at ¶ 15. Mr. Gamble alleges that his position was nonetheless abruptly

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terminated on February 12, 2013, four days after he would have fulfilled his 90-day

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probationary status, under the pretext of performance-related grounds. Id. at ¶¶ 15, 26.

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Among Mr. Gamble’s responsibilities during this period was recruiting for the“Helmets
to Hardhats federal program to promote military apprenticeship in the construction industry.
”

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Id. at ¶¶ 17, 20. Believing that his role included pursuing outreach opportunities, Mr. Gamble
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sent an email “feeler to local radio station KRIZ, which traditionally serves the African”
American community in the Seattle area. Id. at ¶ 20. Mr. Gamble promptly informed

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Defendants of the email, including his supervisor, Defendant John Torkelson. Id. at ¶ 22. Mr.

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Gamble asserts that Defendants “reacted with extreme punitive measures, accusing him of
”

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going outside the chain of command and undermining the PNWRCC media relations

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manager, who was not in the workplace to approve the email “feeler due to health reasons. Id.
”
”

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at ¶ 24.

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ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT- 2

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Mr. Gamble alleges that rather than employ its progressive disciplinary policy in

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response to typical employee misconduct, the PNWRCC decided to terminate his employment

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immediately. Defendant Jimmy Matta’s letter, informing Mr. Gamble of the disciplinary

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decision, stated that “after a thorough review of your performance we have determined that
your services will no longer be needed. Id. at ¶ 26. Plaintiff alleges that the decision to
”

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terminate his employment was motivated by racial animus towards his efforts to increase the
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diversity of the apprenticeship program’s applicant pool, rather than by legitimate,
performance-based concerns. Id. at ¶ 27. It is disputed whether Plaintiff was still on

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probationary employment status when terminated. Either way, Mr. Gamble was considered an

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“ will employee subject to discharge at any time, with or without cause. See Dkt. # 19, Ex. 1,
at ”

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p. 2.1

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Plaintiff filed the instant lawsuit following his termination, seeking declaratory and
injunctive relief as well as monetary damages. On January 29, 2015, the Court entered an
Order dismissing Plaintiff’s First Amended Complaint in its entirety and providing leave to

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amend solely with respect to Plaintiff’s claims for disparate treatment and retaliation under the
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Washington Law against Discrimination (
“WLAD RCW 49.60.010 et seq. and 42 U.S.C. §
”),
1981. Plaintiff timely filed his operative Second Amended Complaint, which alleges six

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causes of action: (1) disparate treatment discrimination in violation of § 1981, (2) unlawful

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retaliation in violation of § 1981, (3) disparate treatment discrimination in violation of the

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WLAD, (4) unlawful retaliation in violation of the WLAD, (5) breach of contract under §

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1981, and (6) discrimination in violation of Title VI of the Civil Rights Act of 1964, 42

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Defendant asks the Court, without objection by Plaintiff, to take judicial notice of PNWRCC’s Personnel Policy. See
Dkt. # 32, p. 5 n. 2. PNWRCC’s Personnel Policy is relied on in Plaintiff’s Second Amended Complaint and is thus
properly considered by the Court without converting this motion into one for summary judgment. See United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006).

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ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT- 3

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U.S.C. § 2000d et seq. See SAC. Defendant again moves to dismiss each cause of action with

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prejudice for failure to state a claim on which relief may be granted. See Dkt. # 32.

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DISCUSSION
A. Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain

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sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Where the plaintiff fails to “nudge[] [her] claims across the line from conceivable

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to plausible, [her] complaint must be dismissed." Twombly, 550 U.S. at 570. A claim is

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facially plausible if the plaintiff has pled “factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at
”

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678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice. Id. (citing Twombly, 550 U.S. at 555). In other words, the plaintiff
”
must provide grounds for her entitlement to relief that amount to more than labels or

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conclusions and extend beyond a formulaic recitation of the elements of a cause of action.
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Twombly, 550 U.S. at 545.
In making a Rule 12(b)(6) assessment, the court accepts all facts alleged in the

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complaint as true, and draws all inferences in the light most favorable to the non-moving

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party. Baker v. Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal

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citations omitted). The court typically cannot consider evidence beyond the four corners of

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the complaint, but it may rely on documents referred to in the complaint when they are central

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to a party’s claim and their authenticity is not in question. Marder v. Lopez, 450 F.3d 445, 448

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ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT- 4

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(9th Cir. 2006). The court may also consider evidence subject to judicial notice. United States

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v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

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B. Disparate Treatment Claims
Mr. Gamble’s first and third claims for relief allege discrimination on account of race
in violation of 42 U.S.C. § 1981 and the WLAD, respectively. Both claims are governed by

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the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
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(1973). See Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 470 F.3d 827, 837-38

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(9th Cir. 2006) (affirming that Title VII substantive standards apply to § 1981 claims);

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Kastanis v. Educ. Employees Credit Union, 122 Wash.2d 483, 859 P.2d 26, 30 (1993)

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(applying McDonnell Douglas framework to claims under the WLAD). Under this

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framework, the plaintiff bears the initial burden to allege facts supporting the elements of a

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prima facie case of discrimination. Id. at 1182 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine,

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450 U.S. 248, 252-53 (1981)). If the plaintiff makes this showing, the burden shifts to the
defendant to offer evidence of a nondiscriminatory reason for the adverse action, and then

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again to the plaintiff to demonstrate that the proffered reason is mere pretext. Id.
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A prima facie case of disparate treatment discrimination requires the plaintiff to
demonstrate that: (1) he is a member of a protected class, (2) he was qualified for his position

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(i.e. satisfactorily performing his job), (3) he suffered an adverse employment action, and (4)

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similarly situated employees outside the protected class were treated more favorably, or other

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circumstances surrounding the adverse action exist that give rise to an inference of

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discrimination. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th 2004); accord Chen

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v. State of Washington, 86 Wash.App. 183, 189, 937 P.2d 612 (Wash. Ct. App. 1997).
Alternatively, a plaintiff need not invoke the McDonnell Douglas presumption if he produces

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ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT- 5

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direct or circumstantial evidence demonstrating his employer’s discriminatory intent.

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McGinest v. GTE Service Corp., 360 F.3d 1103, 1122 (9th Cir. 2004); Vasquez v. Cnty. of Los

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Angeles, 349 F.3d 634, 640 (9th Cir. 2003).

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The Court begins by analyzing whether Mr. Gamble’s Second Amended Complaint
satisfies the four required prongs of his prima facie case. While Defendant does not dispute

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that the first three prongs are met in this case, it again argues that Plaintiff’s failure to plead the
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existence of a legally cognizable comparator is fatal to his disparate treatment claims. The
Court agrees.
Absent evidence of other circumstances giving rise to an inference of discrimination,

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Mr. Gamble must plead the existence of one or more valid comparators. Peterson, 358 F.3d at

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603. As the Court explained in its prior Order of dismissal, doing so requires that Plaintiff

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allege sufficient facts that, accepted as true, could demonstrate that a person outside of his

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protected class but similarly situated in all other material respects was treated more favorably.
See Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2008). This test is a stringent one. Blair v.

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Alaskan Cooper and Brass Co., 2009 WL 2029963, *7 (W.D. Wash. 2009) (citing Moran,
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447 F.3d at 754).
Here, the sole comparator that Plaintiff has specifically pointed to in his operative

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complaint, through his opposition brief, or at oral argument is Mr. Turkelson. SAC at ¶ 30.

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Yet as his supervisor, Mr. Turkelson cannot be said to be similarly situated to Mr. Gamble

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with respect to disciplinary matters. See Vasquez, 349 F.3d at 641 (
“Employees in supervisory

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positions are generally deemed not to be similarly situated to lower level employees. ). Nor
”

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does Plaintiff allege that Mr. Turkelson or any other employee engaged in a comparable act of
asserted misconduct. See id. Again, Plaintiff’s bare allegation that he was treated unfavorably

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ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT- 6

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relative to unnamed non-Black employees, SAC at ¶ 30, merely recites an element of his

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prima facie and must consequently be discarded at the Rule 12(b)(6) stage. See Iqbal, 556

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U.S. at 679.

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Aside from the existence of a valid comparator, Plaintiff fails to point to any direct or
circumstantial evidence of discriminatory intent. Plaintiff’s operative complaint states no

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allegations of overheard derogatory statements or other direct evidence that could prove the
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fact of discriminatory animus without inference or presumption. Cf. Godwin v. Hunt Wesson,
Inc., 150 F.3d 1217, 1221-22 (9th Cir. 1998) (locating direct evidence of sex discrimination in

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statement by defendant’s national sales manager that he“did not want to deal with another

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female Cordova v. State Farm Ins. Companies, 124 F.3d 1145, 1149-50 (9th Cir. 1997)
”);

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(locating direct evidence of race discrimination where employer referred to a Mexican-

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American employee as a “dumb Mexican Nor does Plaintiff point to any circumstantial
”).

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evidence from which the Court could infer discriminatory intent. Cf. Jauregui v. City of
Glendale, 852 F.2d 1128, 1134-35 (9th Cir. 1988). As Plaintiff has failed to make out his

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prima facie case of racial discrimination, his disparate treatment claims must therefore again
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be dismissed.
C. Retaliation Claims

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Through his second and fourth claims for relief, Plaintiff alleges that his termination

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from employment with the PNWRCC was taken in retaliation for his outreach to a radio

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station with a predominantly African-American listening audience and for his opposition to

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the denial of apprenticeship opportunities for African-American applicants. SAC at pp. 13-14,

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16-17. As Plaintiff’s Second Amended Complaint is virtually identical to his previously
dismissed First Amended Complaint with respect to his retaliation claims, the Court dismisses

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ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT- 7

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Plaintiff’s renewed claims.

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In order to make out a prima facie case of retaliation, Mr. Gamble must show that: (1)

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he engaged in a protected activity, (2) he suffered an adverse employment action, and (3) a

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causal link exists between the two. Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir.
1994); Little v. Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002) (applying

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identical standards to retaliation claims brought under federal law and the WLAD). In other
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words, as the Court explained in its prior Order of dismissal, Plaintiff must allege facts that,

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accepted as true, would show that he engaged in an act of opposition to an allegedly

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discriminatory policy or practice, which in turn incited the retaliation against him.2 This act of

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opposition could be met by showing that Plaintiff asked “hard or searching questions,
”

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confronted his employers with objections, or in some way communicated his opposition to a

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discriminatory policy or practice to his employers. See Lodis v. Corbis Holdings, Inc., 172

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Wash.App. 835, 292 P.3d 779 (2013).
Here, Plaintiff points to no asserted act of opposition other than his sending of an

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exploratory email to KRIZ. There is no allegation that this communication, or any
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communication to Plaintiff’s supervisors surrounding it, was confrontational. To the contrary,
Plaintiff immediately informed his supervisors of his email overture, evidently anticipating

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that his initiative in reaching out to KRIZ would be celebrated. Although Mr. Gamble asserts

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that he opposed discriminatory hiring practices in the apprenticeship program, he has not pled

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any act through which he made his opposition known to his employers. Further, Mr. Gamble

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has failed to respond to the PNWRCC’s argument that his pleading are lacking in this respect,

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2
As the Court determined in its prior Order, Plaintiff again does not plead that he participated in a protected
proceeding. Thus, only the “opposition clause” of the WLAD and Section 1981 is at issue. See RCW 49.60.210 & 42
U.S.C. § 2000e-3(a) (protecting an employee from being retaliated against for opposing a forbidden practice).

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ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT- 8

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which can itself can construed as an admission that Defendant’s Motion has merit. See LCR

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7(b)(2). For all these reasons, Plaintiff’s retaliation claims shall again be dismissed.

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D. Breach of Contract Claim
The Court previously dismissed with prejudice Plaintiff’s tortious interference claim,

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which Plaintiff is apparently now endeavoring to resurrect in the form of a breach of contract
claim. Through his fifth claim for relief under § 1981, Plaintiff pleads that he had completed

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his probationary period when terminated and was thus “entitled to enjoy the fully vested

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benefits of his contract with Defendant Union[.] SAC at ¶ 75. However, regardless of
”

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probationary status, all PNWRCC employees are employed on an “at will basis, subject to
”

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termination at any time with or without cause. Dkt. # 19, Ex. 1, p. 2. As an at-will employee,

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Mr. Gamble could not have had a legitimate business or contractual expectancy in his

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continued employment. Woody v. Stapp, 146 Wash.App. 16, 24, 189 P.3d 807 (Wash. Ct.
App. 2008) (
“Generally, at-will employees do not have a business expectancy in continued

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employment. ). The PNWRCC’s progressive disciplinary policy also provides it the “right to
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terminate an employee immediately even for one act of misconduct, including for an act of
”
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insubordination. Dkt. # 32, Ex. A, ¶¶ 8.1, 8.3.
”

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Because Plaintiff had no contractual right to either continued employment or

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progressive discipline in lieu of termination, his Fifth Claim for relief shall be dismissed as a

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matter of law. Again, Plaintiff’s failure to respond at all to the PNWRCC’s arguments as to this

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claim is construed as an admission that they have merit. LCR 7(b)(2).

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E. Title VI Discrimination Claim

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Finally, Plaintiff’s Sixth Claim for relief pleads discrimination under Title VI of the
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ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT- 9

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Civil Rights Act. As the PNWRCC points out, this claim is ambiguously pled: it is unclear

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whether Plaintiff’s claim is directed solely toward his own termination or whether he seeks to

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represent prospective apprentices in challenging the PNWRCC’s allegedly discriminatory

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hiring policy. At oral argument, Plaintiff clarified that he sought to plead only the former.
Title VI of the Civil Rights Act provides that “[n]o person in the United States shall, on

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ground of race, color, or national origin, be excluded from participation in, be denied benefits
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of, or be subjected to discrimination under any program or activity receiving Federal financial

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assistance. 42 U.S.C. § 2000d. To make out his claim, Plaintiff must show that the entity
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involved is engaging in racial discrimination and that the entity is the recipient of federal

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funding. Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447 (9th Cir. 1994),

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overruled on other grounds by Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131

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(9th Cir. 2001). A private individual may sue to enforce Title VI only in instances of

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intentional discrimination. Alexander v. Sandoval, 532 U.S. 275, 281 (2001). In the Ninth
Circuit, a private plaintiff’s Title VI disparate treatment claim is analyzed under the same

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McDonnell Douglas burden-shifting framework that apply to Title VII and similar claims.
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Rashdan v. Geissberger, 764 F.3d 1179, 1182-83 (9th Cir. 2014).
For the reasons set forth with respect to his Section 1981 and WLAD disparate

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treatment claims, Plaintiff has also failed to make out a prima facie case of intentional

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discrimination with respect to his Title VI claim. Although Mr. Gamble pled that the

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PNWRCC receives federal funds, the complete lack of direct or circumstantial evidence in his

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Second Amended Complaint indicating that racial bias motivated the PNWRCC’s decision to

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terminate his employment is fatal to his Title VI claim. See Joseph v. Boise State Univ., 998
F.Supp.2d 928, 944 (D. Idaho 2014) (citing Quintero v. Clovis Unified School Dist., 2013 WL

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ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT- 10

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3198767 (E.D. Cal. 2013). Plaintiff’s threadbare allegations and personal belief that the

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PNWRCC discriminated against him on the basis of his race, see SAC at ¶ 85, are purely

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conclusory and are therefore insufficient to state a “plausible claim to relief. See Iqbal, 556
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U.S. at 679; see also Joseph, 998 F.Supp.2d at 945. The Court may not permit a complaint to
survive the motion to dismiss stage where, as here, its allegations suggest the mere “possibility –
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rather than plausibility– of misconduct. Id.
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Finally, to the extent that Plaintiff did intend to plead a third-party representative
claim challenging the Council’s allegedly discriminatory practices in regards to recruitment of
minority apprentices, he has failed to show in his pleadings that he has standing to do so.

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“
Although federal courts take a broad view of constitutional standing in civil rights

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cases, a civil rights plaintiff claiming discrimination must satisfy the case or controversy

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requirement of Article III by demonstrating [his] standing to sue at each stage of the litigation.
”

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Wood v. City of San Diego, 678 F.3d 1075, 1083 (9th Cir. 2012). Plaintiff must accordingly
show that he suffered an injury in fact, that this injury was traceable to the PNWRCC’s

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actions, and that it can be redressed by a favorable decision. Id. Plaintiff must thereby
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demonstrate that he has a sufficiently concrete interest in the outcome of the issue in dispute
(here the failure to hire minority apprentices) by virtue of his own injury. See Thomas v.

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Mundell, 572 F.3d 756, 763 (9th Cir. 2009). For instance, in McCollum, the Supreme Court

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held that the State of Georgia had third-party standing to raise the equal protection rights of

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jurors improperly excluded from a jury by a criminal defendant’s discriminatory use of

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peremptory challenges. Georgia v. McCollum, 505 U.S. 42 (1992). The Court held in so

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ruling that a state suffers a cognizable injury for standing purposes because racial
discrimination in the selection of jurors “casts doubts on the integrity of the judicial process
”

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ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT- 11

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and on the fairness of criminal proceedings. Id. at 56 (internal quotation omitted).

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The problem with a representative claim in this case is that Plaintiff has not shown that

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the sole injury he alleges – his termination – is traceable to the PNWRCC’s alleged

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discrimination against minority apprentices. It is not clear that were the PNWRCC to hire
more minority apprentices, for instance, Plaintiff’s own employment prospects as a union

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representative would be redressed. While Plaintiff may have a general interest in seeing more
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minority apprentices hired, he must show that this interest relates directly to his injury, or, in

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other words, that he himself is being injured by virtue of discriminatory hiring practices

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against the apprentices. This he has not done. Further, Plaintiff’s allegation that the PNWRCC

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was discriminating against African-American apprenticeship applicants is conclusory at best

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and not in itself sufficient to pass Rule 12(b)(6) muster. Plaintiff’s Title VI intentional

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discrimination claim shall accordingly be dismissed.

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F. Leave to Amend
The sole remaining issue is whether to permit Plaintiff leave to again amend his

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pleadings.  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
…
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.

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Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998); see also Lucas v. Dept.

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of Corrections, 66 F.3d 245, 248 (9th Cir. 1995).

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Here, Plaintiff has proven the futility of allowing amendment of his disparate
treatment and relation claims. His Second Amended Complaint is substantially identical to his
first with respect to these claims and fails to correct the deficiencies previously identified by

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ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT- 12

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the Court. Plaintiffs’ First through Fourth and Plaintiff’s Sixth Claims for Relief shall

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accordingly be dismissed with prejudice. See Ebeid ex. rel. U.S. v. Lungwitz, 616 F.3d 993,

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1001 (9th Cir. 2010) (affirming dismissal with prejudice of second amended complaint).

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Because Plaintiff’s newly added breach of contract claim fails as a matter of law, it too shall be
dismissed with prejudice as it is clear that it could not be saved by amendment. Salameh v.

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Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013).
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CONCLUSION

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

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Dismiss Plaintiff’s Second Amended Complaint (Dkt. # 32) is GRANTED. Plaintiff’s Second

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Amended Complaint is hereby DISMISSED with prejudice and without leave to amend. This

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case shall be CLOSED.

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Dated this 28th day of May 2015.

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A

RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT- 13