United States District Court, E.D. Washington
ORDER GRANTING MOTION TO DISMISS NEGLIGENT SUPERVISION CLAIM
LONNY R. SUKO, Senior District Judge.
BEFORE THE COURT is Defendant Whitman County's Motion To Dismiss Plaintiff's Negligent Supervision Claim For Failure To State A Claim. (ECF No. 20). The motion is heard without oral argument.
This action was originally filed in Whitman County Superior Court and removed here on May 25, 2012. (ECF No. 2). Defendant has been employed by the Whitman County Assessor's Office since 2000. (First Amended Complaint at Paragraph 2.1). During her employment, she has been supervised by Defendant Joe Reynolds ( Id. at Paragraph 2.2), the elected Whitman County Assessor. Plaintiff alleges that during her employment, she has been sexually harassed by Reynolds. ( Id. at Paragraphs 2.4-2.17). Plaintiff asserts causes of actions against Whitman County and Reynolds under Title VII of the Civil Rights Act, 42 U.S.C. §2000e, et. seq., and the Washington Law Against Discrimination (WLAD), RCW Chapter 49.60, for a sexually hostile work environment and for retaliation. She also asserts common law causes of action for outrage and negligent infliction of emotional distress. Finally, Plaintiff asserts against Whitman County a cause of action for negligent supervision, alleging that "Defendant Whitman County's conduct in supervising Defendant Reynolds at work and/or its failure to train him subjected Plaintiff to abusive and hostile conduct which was negligent, unreasonable, and careless." (First Amended Complaint at Paragraph 5.2).
Whitman County moves to dismiss the negligent supervision claim on the basis that "the County has no duty or ability to supervise Mr. Reynolds, as he is an elected official."
II. 12(b)(6) STANDARD
A Fed.R.Civ.P. 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In reviewing a 12(b)(6) motion, the court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from such allegations. Mendocino Environmental Center v. Mendocino County, 14 F.3d 457, 460 (9th Cir. 1994); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The complaint must be construed in the light most favorable to the plaintiff. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The sole issue raised by a 12(b)(6) motion is whether the facts pleaded, if established, would support a claim for relief; therefore, no matter how improbable those facts alleged are, they must be accepted as true for purposes of the motion. Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827 (1989).
The court concludes negligent supervision is not a cognizable legal theory upon which such a claim can be asserted against Whitman County for alleged sexual harassment. Moreover, assertion of that claim is unnecessary to hold Whitman County liable for any sexual harassment perpetrated by Reynolds. This is evident from the decision of the Washington Court of Appeals in Broyles v. Thurston County, 147 Wn.App. 409, 195 P.3d 985 (2008).
In Broyles, the female plaintiffs were former deputy prosecuting attorneys who a jury found had been subjected to sexually discriminatory acts, including sexual remarks, by the elected county prosecuting attorney. On appeal, Thurston County contended it could not be held liable for the acts of the prosecuting attorney because it could not control him or how he ran his office, and that no agency relationship existed between the county and the elected prosecuting attorney. The court of appeals held the county was liable for the prosecuting attorney's discriminatory employment acts:
Especially in the context of employment discrimination, either the state or local government must be responsible for the actions of the officers and agents that exercise governmental powers and act on the government's behalf.
When the prosecuting attorney is exercising his delegated powers in employment matters, he is acting for the county, and thus the county is liable for the consequences of those employment decisions.... In the context of employment discrimination, either the state or local government must be responsible for the actions of the officers and agents that exercise governmental powers and act on the government's behalf.
The County cites numerous cases from other jurisdictions but none is persuasive here as none involves the WLAD and none holds that because a prosecuting attorney is an independently elected official, the ...