United States District Court, E.D. Washington
ORDER GRANTING DEFENDANTS' MOTION FOR JUDGMENT ON
THE PLEADINGS: DENYING PLAINTIFF'S MOTION TO
O. RICE, CHIEF UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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)).
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.
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 hearing”. 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.
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.
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.
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).
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,
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.
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.
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