United States District Court, W.D. Washington, Seattle
RICHARD A. JONES, District Judge.
This matter comes before the court on Rule 12(c) motions by defendants Pacific Maritime Association ("PMA"), International Longshore and Warehouse Union Local 19 ("ILWU"), and ILWU-PMA Benefit Plans Office (the "Plan"). Dkt. # 45; # 47 & # 58-1; # 51.
In his second amended complaint ("SAC"), plaintiff Roderick Demmings alleges that defendants have engaged in disability discrimination and retaliation under the Washington Law against Discrimination ("WLAD") and the Americans with Disability Act ("ADA") because "Defendants have allowed the 14-99 Program to be administered in a discriminatory manner resulting in the denial of services and reinstatement." Dkt. # 41 (SAC) at 6:5-10. Plaintiff also alleges that defendants breached the duty of fair representation and the collective bargaining agreement ("CBA"). Id. at 6:10-14. The factual allegations supporting these claims (Dkt. # 41 (SAC) at 2:16-5:14) involve a series of events that took place from 2006 through September 2010 that were the basis of another case plaintiff filed against PMA and ILWU, and that this court dismissed with prejudice on a number of grounds. Case No. C11-1864 (" Demmings 1 "), Dkt. ## 40, 119, 120. With respect to the new allegations, plaintiff alleges that in November and December 2013, defendants refused to respond to plaintiff's reapplication into the 14-99 Alcohol and Drug Recovery Program. Dkt. # 41 at 5:19-6:3.
A. PMA & ILWU
PMA and ILWU move to dismiss the case under Rule 12(c) based on res judicata. Dkt. # 45 at 4-7; Dkt. # 58-1 at 5-8. PMA and ILWU also move to dismiss plaintiff's claims based on his renewed effort to apply for reinstatement into the 14-99 program in 2013. Dkt. # 45 at 7; Dkt. # 58-1 at 9-10.
In opposition, plaintiff concedes that his claims are only based on his attempt to re-apply for the 14-99 program in 2013, not the 2006 through 2010 conduct that was the subject of Demmings 1. Dkt. # 49 (Opp'n) at 2 (only addressing 2013 allegations in arguing that PMA is incorrect that plaintiff brought the same claims based on the same facts that are precluded); see Local Rules W.D. Wash. CR 7(b)(2)("Except for motions for summary judgment, if a party fails to file papers in opposition to a motion, such failure may be considered by the court as an admission that the motion has merit.").
Since plaintiff concedes that his claims are only based on the 2013 allegations, and not the conduct from 2006 to 2010 that was the subject of Demmings 1, the court has only addressed plaintiff's claims with respect to plaintiff's attempt to be reinstated to the 14-99 program in 2013.
Under Rule 12(c), after the pleadings are closed, but early enough not to delay trial, a party may move for judgment on the pleadings. Fed. R. Civ. Proc. 12(c). Judgment on the pleadings is properly granted when, accepting all factual allegations in the complaint as true, there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law. Chavez v. U.S., 683 F.3d 1102, 1108 (9th Cir. 2012). Analysis under Rule 12(c) is "substantially identical" to analysis under Rule 12(b)(6) because, under both rules, a court must determine whether the facts alleged in the complaint, taken as true, entitle plaintiff to a legal remedy. Id.
PMA and ILWU argue that plaintiff cannot revive a reinstatement claim that has already been decided against him by asking for reinstatement again. Dkt. # 45 at 7 & # 58-1 at 9-10 (citing Collins v. United Air Lines, Inc., 514 F.2d 59 (9th Cir. 1975)).
In Collins, a flight attendant brought suit against her former employer for its failure to rehire her after her initial termination, but she failed to file a union grievance or complaint with the Equal Employment Opportunity Commission ("EEOC") or applicable state agency. 514 F.2d at 595. Over four years after her discharge, Collins sought reinstatement and was refused. Id. She then filed an EEOC complaint, claiming that it was timely because the alleged violation was a continuing one. The Ninth Circuit held that a failure to reinstate after an alleged discriminatory firing did not constitute a new and separate discriminatory act or somehow render the initial violation, if any, a continuing one. Id. at 596. Rather, the court held that, in this context, a request for reinstatement is wholly different from a new application for employment in that it seeks to redress the original termination. Id. The court reasoned that a "discharged employee who seeks to be reinstated is really litigating the unfairness of this original discharge because only if the original discharge was discriminatory is he entitled to be reinstated as if he had never ceased working for the employer." Id.
More recently, the Ninth Circuit distinguished Collins where "new elements of unfairness, not existing at the time of the original violation, attached to denial of reemployment." Josephs v. P. Bell, 443 F.3d 1050, 1060 (9th Cir. 2006). In Josephs, the new elements of unfairness that plaintiff asserted and the jury found existed was that defendant's denial of reinstatement was based on the perception that he was mentally ill. Id.
In Demmings 1, plaintiff alleged that he was "de-registered" or terminated in September 2008 for being unavailable to work during a period of his incarceration. Case No. C11-1864, Dkt. # 8 (SAC) ¶¶ 10, 12. Sometime in 2010, Mr. Demmings requested reinstatement through a drug and alcohol recovery program (14-99 program). Id. ¶ 15. When Mr. Demmings was not accepted into the 14-99 program, he filed charges with the EEOC alleging disability discrimination and received a right to sue letter before filing the Demmings 1 lawsuit on November 7, 2011 ("Reinstatement Claim"). Id., Dkt. # 40 (Ord. Granting 12(b)(6) Mot.) at 4. This court dismissed plaintiff's Reinstatement Claim because the 14-99 program required that the deregistration be caused by drug or alcohol dependency, and, thus, every individual who was re-registered through the 14-99 program presumably shared the same protected group as plaintiff: disability based on drug or alcohol dependency. Id. at 7-8; see Kang v. U. Lim. Am., Inc., 296 F.3d 810, 818 (9th Cir. 2002) (fourth element in prima facie case of disparate treatment employment discrimination requires showing that similarly situated employees not in plaintiff's protected class received more favorable treatment); Davis v. W. One Auto. Group, 140 Wn.App. 449, 459, 166 P.3d 807 (2007) (prima facie case of disparate treatment discrimination requires showing, among other things, that employer treated employee less favorably in terms or conditions of employment than similarly situated, nonprotected employee).
In 2013, Mr. Demmings again requested reinstatement to the 14-99 program, but he has not alleged any new elements of unfairness that did not exist at the time of the denial of the initial reinstatement request. Josephs, 443 F.3d at 1060. For instance, plaintiff has not alleged whether the 14-99 program still requires that the original deregistration be caused by alcohol or drug dependency, or whether the failure to respond to his application for reinstatement was because of his alcohol or drug dependency, or some other reason. Rather, the court finds that Mr. Demmings, who was de-registered and seeks to be reinstated, is really litigating the unfairness of his original deregistration because only if the original deregistration was because of his alcohol or drug dependency is he entitled to be reinstated in the 14-99 program. See Collins, 514 F.2d at 596 ("discharged employee who ...