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Thompson v. North American Terrazzo, Inc.

United States District Court, W.D. Washington, Seattle

May 19, 2014

JESSE THOMPSON, et al., Plaintiffs,
v.
NORTH AMERICAN TERRAZZO, INC., et al., Defendants.

ORDER

RICHARD A. JONES, District Judge.

I. INTRODUCTION

This matter comes before the court on a motion to dismiss all individual and class claims by defendants North American Terrazzo, Inc. ("NAT"), Randy Rubenstein, Joe Geiger, Paul Singh, and Shawn Navoa. Dkt. # 14. Plaintiffs Jesse Thompson, Ernesto Martinez, Julio Cesar Romero, Justin Taylor, and Vitaliy Ostapyuk allege the following class and individual claims: (1) disparate treatment and hostile work environment discrimination on the basis of race and national origin under Title VII, Title I of the 1991 Civil Rights Act, and the Washington Law Against Discrimination ("WLAD"), (2) outrage, (3) negligence and negligent supervision, (4) negligent infliction of emotional distress, (5) wrongful termination or discharge under Title VII and Washington State common law, and (6) violation of the Fair Labor Standards Act ("FLSA"). Dkt. # 1.

Plaintiffs concede that they are not pursuing a class action claim in this action. Dkt. # 17 at 12. Plaintiffs also seem to concede that Title I of the 1991 Civil Rights Act does not create a substantive right and is not a basis for an independent claim apart from Title VII, where they have referred to Title I as a "companion" to Title VII. Dkt. # 17 at 6; see 42 U.S.C. § 1981a (providing for damages in cases of intentional discrimination under Title VII); Pub.L. 102-166, 105 Stat. 1071 (Title I entitled "Federal Civil Rights Remedies"). Accordingly, the court GRANTS defendants' motion with respect to the class claims and separate cause of action for Title I of the 1991 Civil Rights Act.[1]

Having considered the memoranda, complaint and the record herein, the court GRANTS in part and DENIES in part defendants' motion to dismiss.[2]

II. BACKGROUND

Plaintiff Thompson, who is African-American, worked at NAT from July 2009 to August 2010 when he was terminated "because his supervisor stated NAT was going to be a worksite for Mexicans only, and there would be no more work for him.'" Dkt. # 1 (Compl.) ¶ 4. During his employment, "Thompson was repeated[ly] and openly called a nigger, white wash, black motherfucker, fucking nigger, terron, mayate, and Uncle Tom' by his supervisor, Shawn Navoa[.]" Id. Many of these racially derogatory slurs were said in front of another supervisor, defendant Geiger. Id. Thompson repeatedly complained to supervisors Geiger and Singh and the owner Rubenstein about these racially derogatory slurs, but NAT never investigated the complaints, ignored the complaints, allowed the conduct to continue, and terminated Thompson from his employment with NAT after the numerous complaints to management. Id. ¶¶ 5-6.

Plaintiff Taylor, who is Caucasian-American, worked at NAT from August 2004 to October 2010, when he was terminated "because his supervisor stated NAT was going to be a worksite for Mexicans only, and there would be no work for him." Id. ¶ 7. "Taylor was repeated[ly] and openly called a white boy, honky, white mother****er, and white trash, by his supervisor at NAT." Id. Taylor repeatedly complained to supervisors Geiger and Singh and to owner Rubenstein about Navoa's comments, but NAT never investigated the complaints, ignored the complaints, allowed the conduct to continue, and terminated Romero from his employment with NAT after his numerous complaints to management. Id . ¶ ¶ 8-9.

Plaintiff Ostapyuk, who is Caucasian and of Ukrainian origin, worked at NAT from 2003 to May 2010, when he was terminated "because his supervisor stated NAT was going to be a worksite for Mexicans only, and there would be no more work for him.'" Id. ¶ 10. During his employment, "Ostapyuk was repeated[ly] and openly called a white boy, honky, white mother****er, white trash, and Russian motherfucker, ' by his supervisor at NAT." Id. Ostapyuk repeatedly complained to supervisors Geiger and Singh and to owner Rubenstein about Navoa's comments, but NAT never investigated the complaints, ignored the complaints, allowed the conduct to continue, and terminated Ostapyuk from his employment with NAT after his numerous complaints to management. Id. ¶¶ 11-12.

Plaintiff Romero, who is Hispanic-American, worked at NAT from October 2009 to December 2010 when he was terminated "because his supervisor stated NAT was going to be a worksite for whites only, and there would be no more work for him.'" Id. ¶ 13. During his employment, "Romero was repeated[ly] and openly called a wetback, border jumper, spick, and Mexican cockroach' by his supervisor[.]" Id. Romero repeatedly complained to supervisors Geiger and Singh and to owner Rubenstein about Navoa's comments, but NAT never investigated the complaints, ignored the complaints, allowed the conduct to continue, and terminated Romero from his employment with NAT after his numerous complaints to management. Id. ¶¶ 14-15.

Plaintiff Martinez, who is Hispanic-American, worked at NAT from September 2008 to August 2010 when he was terminated "because his supervisor stated NAT was going to be a worksite for whites only, and there would be no more work for him.'" Id. ¶ 16. During his employment, "Martinez was repeatedly and openly called wetback, border jumper, spick, and Mexican cockroach' by his supervisor[.]" Id. Martinez repeatedly complained to supervisors Geiger and Singh and to owner Rubenstein about Navoa's comments, but NAT never investigated the complaints, ignored the complaints, allowed the conduct to continue, and terminated Martinez from his employment with NAT after his numerous complaints to management. Id. ¶¶ 17-18.[3]

III. ANALYSIS

When considering a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), "the court is to take all well-pleaded factual allegations as true and to draw all reasonable inferences therefrom in favor of the plaintiff." Wyler Summit P'ship v. Turner Broadcasting Sys., Inc. , 135 F.3d 658, 663 (9th Cir. 1998). However, the complaint must indicate more than mere speculation of a right to relief. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). "[F]or a complaint to survive a motion to dismiss, the non-conclusory factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service , 572 F.3d 962, 969 (9th Cir. 2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. ...


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