United States District Court, W.D. Washington, Tacoma
B. Leighton, United States District Judge.
MATTER is before the Court on Defendants' Motions to
Dismiss. (Dkt. ## 97 & 98). Pro se plaintiff
Kannha Bounchanh has also filed four motions: Motion for Copy
of the Transcript or Partial Records (Dkt # 134), Motion for
Leave to Appeal in forma pauperis (Dkt # 118),
Motion for Court Appointed Counsel in Title VII Action (Dkt #
133), and a Motion to Request Scheduling the Jury Demand
Trial Date (Dkt # 115).
worked for the Department of Social and Health Services until
2013 and the Washington Health Care Authority until 2015. The
circumstances of his departure from either job are not clear,
but he appears to have voluntarily resigned.
2015, Bounchanh complained to the EEOC that HCA had
discriminated against him. The gist of his claims was that
the agency and its employees failed to reasonably accommodate
his disability, discouraged him from taking leave for his
health conditions, and bullied and retaliated against him.
Bounchanh also claimed that HCA discriminated against him
because of his race, national origin, sexual orientation,
age, and disability. The EEOC found no probable cause to
pursue Bounchanh's claims. He received an EEOC
right-to-sue letter on May 13, 2016, but he did not sue. The
letter notified Bounchanh that he had to sue HCA within 90
days, or he would lose his right to sue based on the charges
in his complaint.
2018, Bounchanh applied for several jobs at DSHS. He was not
hired, and he again complained to the EEOC. He claimed that
DSHS discriminated against him based on his race, sexual
orientation, age, and disability, and retaliated against him
for participating in another employee's unrelated EEOC
claim, and because of his prior EEOC complaint (about HCA).
The EEOC again found no probable cause to pursue
Bounchanh's claims. Bounchanh received a second EEOC
right-to-sue letter on January 25, 2019.
March 6, 2019, Bounchanh sued his former employers (and 41
other defendants) for employment discrimination. His
Amended Complaint largely repeats the claims he made in both
his 2015 and 2018 EEOC complaints. Additionally, Bounchanh
claims that numerous employee defendants violated the Health
Insurance Portability and Accountability Act
(“HIPAA”) when they spoke to his doctor and
obtained his confidential medical information. He also claims
that they violated the Family and Medical Leave Act
(“FMLA”) by discouraging him from taking leave
for personal medical conditions.
also claims that DSHS, HCA, and their employees violated
Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act of 1967
(“ADEA”), the Americans with Disabilities Act of
1990 (“ADA”), the ADA Amendments Act of 2008
(“ADAAA”) when they bullied, retaliated, and
discriminated against him because of his race, age, sex,
disability, and for complaining to the EEOC in 2015.
also sued the entities that investigated his claims in 2015
and 2018-the Equal Employment Opportunity Commission, the
Washington State Human Rights Commission, and Washington
State Attorney General's Office. Bounchanh claims that the
EEOC violated HIPAA when it allegedly lost or mishandled the
“confidential documents” that he submitted with
his 2015 EEOC compliant. Bounchanh does not and cannot claim
that he was ever an employee of any of these agencies or that
he applied for a job with them. He claims instead that they
negligently investigated his claims about HCA and DSHS
because they found no probable cause to pursue
Bounchanh's claims and declined to do so. Bounchanh
claims these agencies similarly violated Title VII, the ADA,
ADAAA, ADEA, and FMLA even though they did not employ him.
remaining Defendants move to dismiss Bounchanh's
remaining claims. First, each Defendant argues correctly that
there is no private right of action under HIPAA. HCA argues
that all Bounchanh's FMLA claims are time-barred. FMLA
claims are subject to a two-year limitations period.
Bounchanh left HCA in 2015 and did not sue until 2019.
also argues that Bounchanh's Title VII, ADA, ADAAA, and
ADEA claims arise from the violations he described in his
2015 EEOC complaint and are time-barred. A plaintiff has 90
days from the date of a right-to-sue letter to sue for the
violations alleged in an EEOC complaint. Bounchanh received
his right-to-sue letter on May 13, 2016 but did not sue until
March 6, 2019-1027 days later.
also argue that Bounchanh's similar claims based on the
events he complained about to the EEOC in 2018 are fatally
flawed, even if they are not time-barred. The individual
employee defendants correctly point out that the ADA, ADEA,
and Title VII do not permit claims against individual
employees-those claims may be asserted only against
employers. EEOC and AGO argue that they have sovereign
immunity from Bounchanh's claims against them, because
they never employed him. They argue that because they are
immune, the Court does not have subject matter jurisdiction
over Bounchanh's claims.
similarly argues that, as a state agency, it has Eleventh
Amendment immunity from Bounchanh's ADA and ADEA claims.
Finally, DSHS argues that while the Court does have
jurisdiction over Bounchanh's Title VII claim against it,
that claim is not plausible because Bounchanh has failed to
plead any facts supporting even an inference that DSHS
discriminated against him when it did not hire him in 2018.
Bounchanh's numerous filings or motions address any of
these arguments. He asks the Court to allow a jury to hear
his claims and to view his evidence, reiterates that the EEOC
and the AGO did not properly investigate his claims (dating
to 2015) about his treatment at the HCA and DSHS. He again
claims that DSHS, the HCA, and their individual employees
bullied, retaliated and discriminated against him. But he
fails to articulate how any of the alleged conduct is
actionable under the authorities cited in the Motions.
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1) or 12(b)(6), the court construes the
complaint in the light most favorable to the non-moving
party. See Livid Holdings Ltd. v. Salomon Smith Barney,
Inc., 416 F.3d 940, 946 (9th Cir. 2005); Wolfe v.
Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Generally,
the court must accept as true all well-pleaded allegations of
material fact and draw all reasonable ...