United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION TO DISMISS
L. ROBART United States District Judge
the court is Defendant Washington State Department of
Health's (“the DOH”) motion to dismiss
Plaintiff Nina French's second amended complaint. (MTD
(Dkt. # 44).) Ms. French opposes the DOH's motion. (MTD
Resp. (Dkt. # 46); MTD Am. Resp. (Dkt. # 49-1).) The court
has considered the motion, the parties' submissions in
support of and opposition to the motion, the relevant
portions of the record, and the applicable law. Being fully
advised,  the court GRANTS the DOH's motion for
the reasons set forth below.
case arises out of Ms. French's employment with divisions
of the DOH at various periods between 2010 and 2014.
(See SAC (Dkt. # 40) at 8.) On June 4, 2015, Ms.
French, who is proceeding pro se and in forma
pauperis (“IFP”), filed her first complaint
against the DOH. (See Compl. (Dkt. # 3); IFP Mot.
(Dkt. # 1); IFP Order (Dkt. # 2).) Pursuant to Ms.
French's request, the court ordered the United States
marshal to serve the DOH within 30 days of July 8, 2016,
after considering Ms. French's requests for appointment
of counsel. (7/8/16 Order (Dkt. # 13) (citing 28 U.S.C.
§ 1915(d)); Orders on Appoint. Counsel (Dkt. ## 5, 6,
the DOH was served, Ms. French filed another action, which
the court consolidated with this matter. (10/4/16 Order (Dkt.
# 17).) Because Ms. French intended to amend her complaint
rather than file a new case, the court construed Ms.
French's filing as her amended complaint when it
consolidated the two cases. (Id.; FAC (Dkt. # 18).)
On October 31, 2016, the DOH filed a motion for judgment on
the pleadings for lack of subject matter jurisdiction and
failure to state a claim. (See MJOP (Dkt. # 23) at
1.) On January 25, 2017, the court granted the motion and
dismissed Ms. French's amended complaint. (1/25/17 Order
(Dkt. # 32).) The court concluded that Ms. French had failed
to meet her burden of establishing the court's subject
matter jurisdiction (id. at 7) and to state a claim
(id. at 8). The court granted Ms. French leave to
amend and ordered her to file a second amended complaint, if
any, no later than 14 days after the entry of the court's
order-February 8, 2017. (Id. at 8-9.) In light of
Ms. French's previous difficulty following court rules
and orders, the court instructed Ms. French to
“carefully consider the deficiencies” in her
amended complaint and that the court would “interpret a
failure to cure those deficiencies as an indication that
further amendment would be futile.” (Id. at
8.) The court also instructed Ms. French that any amended
complaint she filed would supersede her earlier complaints
and that she could not rely solely on exhibits to construct a
cognizable claim. (Id. at 9.) Finally, the court
cautioned Ms. French that it would not “entertain
further requests for favorable treatment” and
instructed Ms. French to comply with all applicable Federal
Rules of Civil Procedure and the Local Civil Rules for the
Western District of Washington. (Id.)
French's deadline for filing a second amended complaint
passed on February 8, 2017, and Ms. French had filed nothing
further in this matter. (See generally Dkt.; 2/13/17
Order (Dkt. # 33).) Accordingly, on February 13, 2017, the
court dismissed Ms. French's case with prejudice and
entered judgment. (2/13/17 Order; Judgment (Dkt. # 34).) //
Several days later, Ms. French alerted the court that she had
attempted to file a second amended complaint on February 9,
2017, one day after the deadline the court imposed.
(See MFR.) However, Ms. French had again
inadvertently opened a new case instead of filing a second
amended complaint in this matter. (See id.) Ms.
French then filed two letters with the court in which she
explained her mistake and requested that the court reopen the
case. (See id.)
Ms. French's first letter was docketed in both matters,
the Honorable Richard A. Jones transferred Ms. French's
newly opened case-Case No. C17-0210-to the undersigned judge
as related to this case-Case No. C15-0859. French v.
Wash. State Dep't of Health, No. C17-0210JLR, Dkt. #
5 (W.D. Wash.). The court consolidated Ms. French's new
case with this matter and construed Ms. French's letters
as a motion for reconsideration of the court's February
13, 2017, order of dismissal and entry of judgment. (3/2/17
Order (Dkt. # 37) at 4-6.) After ordering the DOH to respond
to Ms. French's motion for reconsideration (id.;
see also MFR Resp.); Local Rules W.D. Wash. LCR
7(h)(3), the court granted Ms. French's motion, vacated
the judgment, and directed the Clerk to file Ms. French's
second amended complaint on the docket (3/27/17 Order (Dkt. #
39) at 8). Ms. French's second amended complaint is now
the operative complaint.
second amended complaint, Ms. French asserts claims against
the DOH under Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e, et seq., the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12111,
et seq., and for age and sex //
discrimination. (See SAC at 5.) Although she does
not expressly assert any other claims, her complaint also
refers to “whistleblower protection”
(id. at 6; see also Id. at 8), violation of
her Collective Bargaining Agreement (“CBA”)
(id. at 23, 25-27), and the fact that some of her
coworkers went through her personal belongings after the DOH
laid her off (id. at 8).
moves to dismiss with prejudice Ms. French's second
amended complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). (See MTD.) Ms.
French opposes the motion. (MTD Resp.; MTD Am. Resp.) The
court now addresses the DOH's motion to
initial matter, the court notes that the DOH liberally
construes Ms. French's second amended complaint to assert
a variety of federal and state claims, even though she does
not directly assert many of them. (Compare MTD,
with SAC.) Specifically, the DOH moves to dismiss
claims under the federal Whistleblower Protection Act
(“WPA”), 5 U.S.C. § 2302; the ADA; the Age
Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621, et seq.; 42 U.S.C. § 1983;
Title VII of the Civil Rights Act; the Washington Law Against
Discrimination (“WLAD”), RCW ch. 49.60; and
Washington tort and unfair labor practices law. (See
MTD at 4-18.) Because the court must liberally construe Ms.
French's pro se complaint, Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
1988), and Ms. French does not contend that she raised any
additional claims (see generally MTD Resp.), the
court adopts the DOH's characterization of the claims Ms.
French asserts and addresses whether she has adequately
stated a claim as to any of them.
motion to dismiss pursuant to Rule 12(b)(1) tests the
court's subject matter jurisdiction. See Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004);
Holdner v. Or. Dep't of Agric., 676 F.Supp.2d
1141, 1144 (D. Or. 2009). “When a motion to dismiss
attacks subject-matter jurisdiction under Rule 12(b)(1) on
the face of the complaint, the court assumes the factual
allegations in the complaint are true and draws all
reasonable inferences in the plaintiff's favor.”
City of L.A. v. JPMorgan Chase 6 Co., 22
F.Supp.3d 1047, 1052 (C.D. Cal. 2014); see also
Covarrubias v. Cty. of Mono, No. CIV. S-09-0613 LKK/KJM,
2009 WL 2590729, at *1 (E.D. Cal. Aug. 20, 2009) (“In a
Rule 12(b)(1) motion [bringing a facial attack], the
plaintiff is entitled to safeguards similar to those
applicable when a Rule 12(b)(6) motion is made.”).
moves to dismiss Ms. French's claims pursuant to Rule
12(b)(1) on the bases that the WPA does not apply to Ms.
French (MTD at 4-5) and Eleventh // Amendment sovereign
immunity is not waived or abrogated for ADA, ADEA, and
Section 1983 claims against the State (id. at 5-7).
Jurisdiction Under the WPA
argues that to the extent Ms. French alleges a claim under
the WPA, her claim fails because (1) she was not a federal
employee and (2) there is no judicial review of a WPA claim
in district court before the claim is administratively
reviewed. (MTD at 4-5.) “The Whistleblower Protection
Act of 1989 was created to improve protection from reprisal
for federal employees who disclose, or blow the whistle on,
government mismanagement, wrongdoing, or fraud.”
Faz v. N. Kern State Prison, No.
CV-F-11-0610-LJO-JLT, 2011 WL 4565918, at *6 (E.D. Cal. Sept.
29, 2011) (internal quotation marks omitted). Ms. French was
a Washington State employee during the events she alleges in
her complaint, so the WPA does not apply to her.
(See SAC at 8 (stating that she worked at the
Washington State Department of Health, Public Health
Laboratories in Shoreline, Washington)); 5 U.S.C.
§§ 2302(a)(2)(B)-(C) (stating that the WPA applies
only to federal employees in a “covered position”
in an “agency”). Furthermore, even if Ms. French
were otherwise entitled to the WPA's protections, the WPA
does not provide for judicial review in district court prior
to administrative review. See Kerr v. Jewell, 836
F.3d 1048, 1054 (9th Cir. 2016). Ms. French's complaint
contains no allegations that she was a federal employee at
the time in question or attempted administrative review
before bringing her suit in federal district court.
(See SAC; see also MTD Resp. (failing to
mention any administrative review related to her
whistleblower allegations).) For these reasons, Ms. French
fails to establish the court's subject matter
jurisdiction over her WPA claim to the extent she intends to
assert such a claim.