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French v. Washington State Department of Health

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

May 22, 2017

NINA FRENCH, Plaintiff,


          JAMES L. ROBART United States District Judge


         Before 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, [1] the court GRANTS the DOH's motion for the reasons set forth below.


         This 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, 11).)

         After 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).[2] 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.)

         Ms. 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.)

         After 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.

         In the 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.[3] (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).

         The DOH 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 dismiss.[4]

         III. ANALYSIS

         As an 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.

         A. Rule 12(b)(1)

         A 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.”).

         The DOH 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).

         1. Jurisdiction Under the WPA

         The DOH 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.

         2. Sover ...

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