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Bounchanh v. WA State Health Care Authority

United States District Court, W.D. Washington, Tacoma

November 15, 2019



          Ronald B. Leighton, United States District Judge.


         THIS MATTER is before the Court on Defendants' Motions to Dismiss.[1] (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).

         Bounchanh 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.

         In 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[2] 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.

         In 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.

         On March 6, 2019, Bounchanh sued his former employers (and 41 other defendants[3]) 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.

         Bounchanh 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.

         Bounchanh 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.[4] 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.

         All 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.

         HCA 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.

         Defendants 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.

         DSHS 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.

         None of 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.

         I. DISCUSSION

         A. Legal Standard

         When 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 ...

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