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Mason v. Washington State

United States District Court, W.D. Washington

December 5, 2017

ELTON MASON, Plaintiff,
v.
WASHINGTON STATE, et al., Defendants.

          ORDER ON MOTIONS TO DISMISS

          Marsha J. Pechman United States District Judge

         The above-entitled Court, having received and reviewed:

         2. Plaintiffs Opposition to STP and State Defendants' Motions to Dismiss (Dkt. No. 47);

         IT IS ORDERED that the motions are GRANTED IN PART and DENIED IN PART.

         IT IS 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.

         IT IS FURTHER ORDERED that all claims against Defendant Seattle Tunnel Partners are DISMISSED with prejudice except the state and federal retaliation claims.

         Background

         Plaintiff 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 ¶ 3.[1] Defendant Seattle Tunnel Partners ("STP") is the design-build contractor for the Alaskan Way Viaduct ("AVW") project. AC ¶¶ 18, 19.

         The 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.

         The 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 ¶¶ 46-47.

         Plaintiff 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.

         In 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.

         Plaintiff 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.

         Discussion

         Standard of review

         In 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).

         "Threadbare 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." Id.

         Eleventh Amendment Immunity

         The 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 omitted).

         The 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 Cir. 1981).

         Plaintiff 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.

         Title VIRetaliation (42 U.S.C. § 2000d)

         In 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 the ...


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