United States District Court, W.D. Washington
ORDER ON MOTIONS TO DISMISS
J. Pechman United States District Judge
above-entitled Court, having received and reviewed:
Plaintiffs Opposition to STP and State Defendants'
Motions to Dismiss (Dkt. No. 47);
ORDERED that the motions are GRANTED IN PART and DENIED IN
ORDERED that all claims against Defendants Washington State,
Washington State Department of Transportation, Office of
Minority Women Business Enterprises, Lynn Peterson and Linea
Laird are DISMISSED with prejudice.
FURTHER ORDERED that all claims against Defendant Seattle
Tunnel Partners are DISMISSED with prejudice except the state
and federal retaliation claims.
is an African-American male, sole owner of Washington State
Trucking ("WST"), a trucking and excavating company
certified as a Disadvantaged Business Enterprise
("DBE"). Dkt. No. 37, Amended Complaint
("AC") ¶¶ 1, 36. Defendant Washington
State Department of Transportation ("WSDOT") is the
state agency responsible for oversight of highway
construction projects. AC ¶ 23. Defendant Lynn Peterson
is the Secretary of WSDOT. AC ¶ 7. Defendant Office of
Minority Women Business Enterprises ("OMWBE") is
the state entity responsible for certifying as DBEs small
businesses owned by minorities, women and other
socially/economically disadvantaged individuals. AC ¶
Defendant Seattle Tunnel Partners ("STP") is the
design-build contractor for the Alaskan Way Viaduct
("AVW") project. AC ¶¶ 18, 19.
goal of the federally-funded AVW project is to build a new
State Route 99 corridor through the City of Seattle. WSDOT,
owner of the project, awarded the contract to STP. AC
¶19. That contract calls for a goal of 8% of contracted
work awarded to DBEs. AC ¶21. Believing that both STP
and the State of Washington were in violation of their
responsibilities under the contract and the law, Plaintiff
filed tort claims and Title VI complaints against Defendants
as well as making informal complaints. AC ¶¶ 37-39.
Federal Highway Administration ("FHWA")
investigated Plaintiffs complaints and issued a report in
November 2013, finding that both STP and WSDOT were in
violation of federal regulations and the DBE program
requirements. AC ¶¶ 44-45. Following the
publication of that report, WSDOT issued a finding that STP
was in breach of contract and needed to engage in
commercially reasonable discussions with Plaintiff. AC
alleges that, beginning in February of 2014, STP began a
series of adverse actions against his company - including
offering a "burdensome, " 260-page contract for a
reduced amount of work, conditioning Plaintiffs contract on
the release of his claims against STP, refusing to consider
bids for other jobs, and making false statements about
Plaintiff- which Plaintiff claims were done in retaliation
for the complaints he filed, and in an attempt to blacklist
him from getting other work. AC ¶¶ 60-61.
March 2014, WSDOT and the FHWA entered into a Conciliation
Agreement, under which WSDOT agreed to more intensively
oversee STP's efforts to meet the 8% DBE goal, hire a DBE
Program Administrator and Coordinator, and take whatever
steps were appropriate should it appear that STP had failed
to address the DBE compliance issues which the FHWA report
had identified. AC ¶¶ 94-98. Plaintiff alleges that
WSDOT failed to meet its obligations under that agreement,
and failed to either properly oversee or regulate STP's
unlawful activities as described supra. AC
¶¶ 99-104. Plaintiff alleges that this was also
done in retaliation for his "whistleblowing, " and
that WSDOT directly retaliated against him by spreading
information about his equipment and work that was false to
other agencies and businesses. AC ¶¶ 105, 106.
initially filed a complaint against Defendants alleging
eleven separate causes of action under state and federal law.
Dkt. No. 1. In response, Defendants filed motions to dismiss
(Dkt. Nos. 21, 30), citing both statute of limitations issues
and failure to state any claims upon which relief could be
granted. The Court granted those motions, dismissing
Plaintiffs claim for Title VI Discrimination with prejudice,
but dismissing the remainder without prejudice and with leave
to amend. Dkt. No. 33, Order at 21 ("TSZ Order").
Plaintiff then filed this amended complaint, alleging claims
for Title VI retaliation; retaliation, blacklisting, and
discrimination under the Washington Law Against
Discrimination (RCW 49.60 et seq.; "WLAD"); breach
of contract; and violations of § 1981 and § 1985.
Defendants responded with a second round of motions to
dismiss which are now before the Court.
analyzing the parties' arguments under FRCP 12(b)(6), the
Court must accept all facts alleged in the complaint as true,
and draw all inferences in the light most favorable to the
non-moving party. Barker v. Riverside County Office of
Educ., 584 F.3d 821, 824 (9th Cir. 2009). To survive a
motion to dismiss, Plaintiffs "factual allegations must
be enough to raise a right to relief above the speculative
level on the assumption that all the allegations in the
complaint are true." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
recitals of all the elements of a cause of action, supported
by mere conclusory statements, do not suffice."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
plaintiff must plead facts "that allow the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. Factual
allegations "that are merely consistent with a
defendant's liability... stop short of the line between
possibility and plausibility of entitlement to relief."
majority of the claims against the State of Washington,
OMWBE, WSDOT and the individual State employees in their
official capacities ("the State Defendants") fail
on Eleventh Amendment immunity grounds. "[I]n the
absence of consent a suit in which the State or one of its
agencies or departments is named as the defendant is
proscribed by the Eleventh Amendment... This jurisdictional
bar applies regardless of the nature of the relief
sought." Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 100-01 (1984)(citations
State has not consented to suit in federal court on the
claims concerning WLAD, any contracts or agreements between
STP and WSDOT, or any violations of § 1981 or §
1985; Eleventh Amendment immunity bars all claims against the
State Defendants except the Title VI retaliation cause of
action. Plaintiff points to RCW 4.92.090, in which the State
of Washington waives immunity for any and all acts of
"tortious conduct, " but, as the State Defendants
point out, a waiver of immunity in state court does not
operate as a waiver of federal court immunity. See Ronwin
v. Shapiro, 657 F.2d 1071, 1073-74 (9th Cir. 1981);
also McConnell v. Critchlow, 661 F.2d 116, 117 (9th
cites no authority to the contrary; the State Defendants are
immune to all causes of action except the Title VI
retaliation claim and all other claims against the State
Defendants (including Defendants Peterson and Laird in their
official capacities) will be dismissed with prejudice.
VIRetaliation (42 U.S.C. § 2000d)
order to successfully state a claim for Title VI retaliation,
Plaintiff must establish (1) that he engaged in a protected
activity; (2) that Defendants took a "material adverse
employment action" against him; and (3) that there is a
"causal connection... between the protected activity and