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Waller v. City of Spokane Fire Department

United States District Court, E.D. Washington

November 8, 2019

DON WALLER, a Washington Resident, Plaintiff,



         BEFORE THE COURT is Defendants the City of Spokane Fire Department and the City of Spokane, Washington's Motion for Judgment on the Pleadings (ECF No. 18) and Plaintiff Don Waller's Motion to Amend (ECF No. 21). The Motions were submitted with oral argument on November 6, 2019. The Court - having reviewed the record and the completed briefing - is fully informed. For the reasons discussed below, the Court grants Defendants' Motion (ECF No. 18) and denies Plaintiff's Motion (ECF No. 21).


         Federal Rule of Civil Procedure 12(c) provides that, “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” “For purposes of the motion, the allegations of the non-moving party must be accepted as true, while the allegations of the moving party which have been denied are assumed to be false.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989) (citations omitted). “Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law.” Id. (citation omitted).

         A motion under Rule 12(c) is reviewed under the same standard of review as that of Rule 12(b)(6). Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054, n.4 (9th Cir. 2011). As such, a motion for judgment on the pleadings will be denied if the plaintiff alleges “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the plaintiff's “allegations of material fact are taken as true and construed in the light most favorable to the plaintiff[, ]” the plaintiff cannot rely on “conclusory allegations of law and unwarranted inferences [] to defeat a motion to dismiss for failure to state a claim.” In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (citation and brackets omitted). That is, the plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements.” Twombly, 550 U.S. at 555.

         “Generally, the scope of review on a motion to dismiss for failure to state a claim is limited to the contents of the complaint.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (citation omitted). However, “[a] court may consider evidence on which the complaint ‘necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” Id. (citations omitted). “The court may treat such a document as ‘part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).'” Id. (quoting United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)).

         BACKGROUND [1]

         This case arises out of Plaintiff Don Waller's alleged misconduct in the workplace while working for the City of Spokane Fire Department (“SFD”) and the resulting Settlement Agreement agreed upon by the City of Spokane (“City”) and Plaintiff's union, IAFF Local 29 (“Local 29”). ECF No. 1 at 3, ¶ 8.

         In short, an employee of SFD filed a complaint alleging, inter alia, that Plaintiff and other SFD employees “had engaged in a pattern of workplace bullying and harassment” over the last three to six years. ECF No. 1 at 3-4, ¶ 8. Plaintiff was informed of the complaint on or about February 9, 2018, and was provided with a “Loudermil[2] hearing”.[3] ECF No. 1 at 3-4, ¶¶ 8-10. “Local 29 President Randy Marler and Local 29 Attorney SaNni Lemonidis were present for the interview.” ECF No. 1 at 4, ¶ 10.

         “[F]ollowing the June 7, 2018 Loudermill [hearing], the City and Local 29 were attempting to resolve the filed complaint via settlement procedures outlined in the Collective Bargaining Agreements between the City and Local 29 Spokane Fire Fighters Bargaining Unit (‘CBA 2016-2019') and the SAFO Bargaining Unit (‘CBA 2017-2020').” ECF No. 1 at 5, ¶ 11. “Identical provisions in the CBAs permit the City and the union to have meetings of their respective negotiating committees to resolve any grievance before them.” ECF No. 1 at 5, ¶ 11. “At no time was Waller asked to participate in the settlement discussions.” ECF No. 1 at 5, ¶ 11.

         “On or about July 16, 2018, the City and Local 29 entered in a labor agreement titled ‘Settlement Agreement between City of Spokane and IAFF Local 29' (‘Agreement').” ECF No. 1 at 5, ¶ 12. “The Interim Vice President of SAFO, the bargaining unit to which [Plaintiff] belongs, participated in the negotiation leading up to this Agreement” and the “Agreement was also executed by City Personnel, as well as the President, Vice President, Treasurer, and Secretary of Local 29.” ECF No. 1 at 5, ¶ 12.

         The Agreement provided that Plaintiff and others were found to have violated City policies and that that City was “prepared to issue serious discipline to [them] based upon the sustained policy violations.” ECF No. 1 at 6 (brackets in original) (Plaintiff quoting Agreement). The Agreement further provided that Plaintiff would be “suspended for two shifts (48 hours) without pay” and that he would “receive his discipline within seven (7) calendar days of the Agreement.” ECF No. 1 at 6, ¶ 13. “Importantly, the Agreement provided ‘the Union and members agree not to dispute the above discipline, including any possible claim asserted through the grievance procedure or Civil Service Rules.'” ECF No. 1 at 6, ¶ 14 (Plaintiff quoting Agreement).

         On the same day the Agreement was finalized, the City sent signed letters of suspension to Plaintiff, which (mistakenly) stated that Plaintiff had a right to appeal the decision to the Civil Service Commission and that Plaintiff may also have the right to grieve the discipline through his collective bargaining agreement. ECF No. 1 at 6-7, ¶ 15. According to Plaintiff, he did not receive the letter until August 9, 2018.

         On August 13, 2018, the Civil Service Commission sent a letter to Plaintiff (again, mistakenly) advising him of his right to appeal the order of discipline “received by the Commission on August 13, 2018.” ECF No. 1 at 7, ¶ 17. Plaintiff filed an appeal with the Civil Service Commission and an “attorney appeared on behalf of [Plaintiff] in the Civil Service Appeal on August 22, 2018.” ECF No. 1 at 8, ¶ 18.

         On August 29, 2018, the City advised Plaintiff that the reference to his right to appeal in the discipline letter from the City was a “Clerical Error”, asserting that Plaintiff's right to appeal under the Civil Service Rules were superseded by the parties' negotiated Settlement Agreement. ECF No. 1 at 8-9, ¶¶ 19-20.

         “The Civil Service Commission agreed to hear, after briefing by Waller and the City, whether or not the Agreement preempted the Commission's jurisdiction to hear Waller's appeal.” ECF No. 1 at 9, ¶ 22. “The City and counsel for [Plaintiff] briefed the issue and argued the same before the Civil Service Commission on September 18, 2018.” ECF No. 1 at 9, ¶ 22. “The Commission, referencing a previous loss to the City on jurisdictional issues, [made] an oral ruling that it did not have ...

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