United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART DEFENDANTS' MOTION FOR
S. LASNIK UNITED STATES DISTRICT JUDGE.
matter comes before the Court on “Defendants'
Motion for Summary Judgment Dismissal of Plaintiff's
Complaint.” Dkt. # 16. Mr. Martin alleges that his
application for appointment to the City of Mill Creek City
Council was rejected in February 2018 because of his race
and/or because he engaged in protected activities in 2015,
2017, and 2018. In his complaint, Mr. Martin cites to
statutes and common law causes of action related to
discrimination, retaliation, defamation, and intentional
interference with business expectancy. Defendants are the
City of Mill Creek, the six City Council members who selected
another applicant for appointment to the open Council
position, and the City Manager who developed the process for
interviewing, nominating, and voting on the applicants. They
seek dismissal of all of Mr. Martin's claims on the
grounds of absolute legislative immunity, lack of evidence of
unlawful activity, and the separation of powers doctrine.
They argue that some of the claims asserted are subject to
dismissal because there is no employer-employee relationship
between Council members and any of the defendants, plaintiff
failed to file a tort claim before pursing his state law
causes of action, and the statutory limitations periods have
judgment is appropriate when, viewing the facts in the light
most favorable to the nonmoving party, there is no genuine
issue of material fact that would preclude the entry of
judgment as a matter of law. The party seeking summary
dismissal of the case “bears the initial responsibility
of informing the district court of the basis for its
motion” (Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)) and “citing to particular parts of
materials in the record” that show the absence of a
genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once
the moving party has satisfied its burden, it is entitled to
summary judgment if the non-moving party fails to designate
“specific facts showing that there is a genuine issue
for trial.” Celotex Corp., 477 U.S. at 324.
The Court will “view the evidence in the light most
favorable to the nonmoving party . . . and draw all
reasonable inferences in that party's favor.”
Krechman v. County of Riverside, 723 F.3d 1104, 1109
(9th Cir. 2013). Although the Court must reserve for the jury
genuine issues regarding credibility, the weight of the
evidence, and legitimate inferences, the “mere
existence of a scintilla of evidence in support of the
non-moving party's position will be insufficient”
to avoid judgment. City of Pomona v. SQM N. Am.
Corp., 750 F.3d 1036, 1049 (9th Cir. 2014); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Factual disputes whose resolution would not affect the
outcome of the suit are irrelevant to the consideration of a
motion for summary judgment. S. Cal. Darts Ass'n v.
Zaffina, 762 F.3d 921, 925 (9th Cir. 2014). In other
words, summary judgment should be granted where the nonmoving
party fails to offer evidence from which a reasonable jury
could return a verdict in its favor. FreecycleSunnyvale
v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).
reviewed the memoranda, declarations, and exhibits submitted
by the parties and taking the evidence in the light most
favorable to Mr. Martin, the Court finds as follows:
Legislative Immunity and the Separation of Powers
argue that they are entitled to absolute legislative immunity
from suit (see Bogan v. Scott-Harris, 523 U.S. 44,
49 (1998)), and that the separation of powers doctrine
precludes the judiciary from inquiring into their motives in
selecting an applicant other than Mr. Martin (see Tenney
v. Brandhove, 341 U.S. 367, 377 (1951)). To the extent
there is a distinction between the two shields, they both
protect legislators from liability for their legislative
activities. The question, then, is whether the City Council
members were acting in a legislative capacity when they
evaluated applications and selected John Steckler for
appointment to the open Council position.
all governmental acts by a local legislator, or even a local
legislature, are necessarily legislative in nature.”
Cinevision Corp. v. City of Burbank, 745 F.2d 560,
580 (9th Cir. 1984). Officials seeking absolute immunity have
the burden of showing that immunity is justified by the
governmental function at issue: acts that are administrative
or executive in nature are entitled to lesser protections.
Trevino v. Gates, 23 F.3d 1480, 1482 (9th Cir.
1994). “Whether an act is legislative turns on the
nature of the act, ” and the Court cannot rely on
allegations (or even fact-finding) regarding the
legislators' subjective intent when “resolving the
logically prior question of whether their acts were
legislative.” Bogan, 523 U.S. at 54.
identify the relevant acts as interviewing applicants, voting
until a single candidate obtained majority support, and
appointing the successful applicant to the City Council. Dkt.
# 16 at 6. Personnel decisions are generally administrative
in nature unless they are made in the context of budget
legislation which has the impact of creating, eliminating, or
redefining municipal positions. Alexander v. Holden,
66 F.3d 62, 65-66 (4th Cir. 1995). See also Almonte v.
City of Long Beach, 478 F.3d 100, 107 (2nd Cir. 2007)
(“A personnel decision is administrative in nature if
it is directed at a particular employee or employees, and is
not part of a broader legislative policy.”); Smith
v. Lomax, 45 F.3d 402, 404 (11th Cir. 1995) (finding
that “voting on the appointment of a Board clerk is not
the sort of broad ‘legislative' activity that is
typically associated with grants of absolute
immunity.”). The mere fact that defendants engaged in
the activity of voting in order to select a new council
member does not render their conduct immune from suit or
otherwise outside the purview of judicial review. See
Cinevision, 745 F.2d at 579 (rejecting argument that
“a legislative act is one in which the body
votes”). Defendants may be entitled to qualified
immunity from liability under § 1983 if their conduct
did not violate clearly-established federal rights
(Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)),
but they have not shown that absolute legislative immunity is
appropriate in the circumstances presented here.
elected officials and appointees on the policy making level
are not “employees” under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e(f), or the Age
Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 630(f). Plaintiff
cannot, therefore, assert discrimination or retaliation
claims under those statutes.
argue that, although the Americans with Disabilities Act
(“ADA”) does not expressly exclude elected
officials or policy-making appointees from its reach, the
Court should look to common law to determine whether a City
Council member is “employed” by the City and
therefore an “employee.” As the Seventh Circuit
has noted, the ADA's definition of “employee”
as one who is employed by an employer “is vague and
circular, ” necessitating resort to the common law test
for determining who is and is not an employee. Bluestein
v. Central Wis. Anesthesiology, S.C., 769 F.3d 944, 951
(7th Cir. 2014). The Supreme Court presumes that when
Congress uses the term “employee” without
adequately defining it, Congress intends “to describe
the conventional master-servant relationship as understood by
the common-law agency doctrine, ” with “the
common-law element of control [as] the principle
guidepost.” Clackamas v. Gastroenterology Assocs.,
P.C. v. Wells, 538 U.S. 440, 445, 448 (2003). Defendants
point out, and plaintiff does not dispute, that City Council
members are not subject to the control of the City or each
other in the performance of their legislative functions. The
Court therefore finds that they are not
“employed” by the City for purposes of the ADA.
No Evidence of Unlawful Activity
assert that “[t]he undisputed evidence demonstrates
Plaintiff was afforded a fair and equal opportunity to seek
appointment to the vacant seat on the Mill Creek City Council
through a legislative process mandated by State law.”
Dkt. # 16 at 11. Plaintiff alleges, however, that he is
African American, that he was qualified for the Council
position, and that the Council members, acting in their
official capacities, chose a white applicant instead. These
allegations are uncontested and, as in the Title VII context,
are sufficient to raise a prima facie inference of racial
discrimination. See Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 88 (2nd Cir. 2015). Defendants make
no effort to show what legitimate, non-discriminatory
considerations prompted their decision not to hire Mr. Martin
or to otherwise rebut plaintiff's prima facie case.
Defendants' reliance on the process mandated by state law
is unavailing where plaintiff's Section 1983 claim is
based on the theory that defendants exercised their
discretion under that process in a discriminatory manner.
regards to Rebecca Polizzotto, however, there is no
indication that she had any role in the decision-making that
plaintiff alleges was discriminatory. As the then-City
Manager, Ms. Polizzotto made recommendations regarding the
process to be used in selecting an applicant for the open
City Council position. Because plaintiff has not challenged
the process or otherwise presented facts ...