Leishman v. Attorney Gen.'s

1

ROGER A. LEISHMAN, Plaintiff, v. WASHINGTON ATTORNEY GENERAL'S OFFICE; SHANE ESQUIBEL; ELIZABETH CHRISTINA BEUSCH; ALLYSON JANAY FERGUSON; KARI HANSON; SUZANNE LIABRAATEN; VALERIE PETRIE; KATHRYN NADINE REYNOLDS; WESTERN WASHINGTON UNIVERSITY; BRUCE SHEPARD; OFFICE OF THE GOVERNOR; OGDEN MURPHY WALLACE, PLLC; KAREN SUTHERLAND; and PATRICK PEARCE, Defendants.

No. 2:20-cv-861

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

October 31, 2023

ORDER GRANTING STATE DEFENDANTS' MOTION TO DISMISS

Jamal N. Whitehead United States District Judge

1. INTRODUCTION

This is an employment and civil rights lawsuit. It stems from Plaintiff Roger Leishman's firing from the Washington Attorney General's Office and its aftermath. In sum Leishman alleges the Attorney General's Office and several of his former colleagues discriminated and retaliated against him, and that they, along with the State's outside employment investigators and others violated his civil rights and subjected him to other unlawful conduct. Before the Court is the State Defendants^[1]second motion to dismiss Leishman's complaint for failure to state a claim. Dkt. No. 146. As explained more fully below, the Court GRANTS their motion.

2. BACKGROUND

2.1 Factual background.

On July 14, 2015, the Attorney General's Office hired Leishman to serve as the Chief Legal advisor to Western Washington University. Dkt. No. 133 at 5. Shortly after he began working, Leishman disclosed to the Attorney General's Office that he was experiencing “serious Body-Focused Repetitive Behaviors (including trichotillomania), anxiety, bruxism, insomnia, and other physical and mental symptoms.” Id. at 5. Leishman's physician later diagnosed him with Post-Traumatic Stress Disorder and serious codependency. Id. at 6. His symptoms affected his behavior at work, including his interactions with his coworkers. Id. at 6-7.

In late January 2016, Leishman submitted a formal workplace disability accommodation request, but the Attorney General's Office denied his request. Id. at 9, 11.

About a month later, and separate from his accommodation request, Leishman filed a formal sexual orientation discrimination complaint. Id. at 12. He alleged that his supervisor had made “homophobic allegations” against him and wrongfully withheld a $3,000 raise, which were part of a pattern of “implicit and explicit workplace homophobia.” Id. at 12.

Several days after he submitted his discrimination complaint, the Attorney General's Office placed Leishman on home assignment effective immediately and without any warning or explanation. Id. at 14. He was told that someone would contact him about his sexual orientation discrimination complaint. Id. at 15.

The Attorney General's Office retained Seattle law firm Defendant Ogden Murphy Wallace to investigate Leishman's discrimination complaint. Id. at 20. Ogden Murphy attorney Defendant Patrick Pearce interviewed Leishman on two separate occasions. Id. at 20-21. Pearce represented to Leishman that Ogden Murphy's investigation was limited to Leishman's sexual orientation complaint. Id. at 20-21. No one told Leishman, but by that time, the Attorney General's Office had expanded the scope of Ogden Murphy's investigation to include “separate secret complaints” about Leishman's workplace conduct. Id. at 24.

Around the same time, Leishman retained private counsel “in connection with all issues related to his employment dispute, with the sole exception of Leishman's pending sexual orientation discrimination complaint.” Id. at 22. Ogden Murphy interviewed Leishman outside the presence of his attorney. Id. at 23, 27.

On April 26, 2016, Pearce forwarded his finished report to the Attorney General's Office. Id. at 27. About two weeks later, at a meeting on May 9, 2016, the Attorney General's Office terminated Leishman's employment by providing him and his attorney with a one-sentence termination letter. Id. at 31. The Attorney General's Office also gave Leishman a copy of Ogden Murphy's investigative report at the meeting. Id. When Leishman reviewed the report, he learned that his workplace conduct was also at issue. Id. at 26.

On October 18, 2016, Leishman's counsel submitted a tort claim form, stating, “This claim involves legal claims of disability discrimination, failure to accommodate and retaliation.” Id. at 34. The parties attended mediation and ultimately entered a written settlement agreement in November 2016. Id. Leishman alleges the “2016 Settlement Agreement is limited to [his] claims identified in the 2016 Tort Claim.” Id.

Since his termination, Leishman has submitted “multiple requests” under Washington's Public Records Act to “various State agencies,” including requests for documents related to the expenditure of public resources “for the private benefit” of certain individual State Defendants. Id. at 39-40. Leishman received some documents in response to his requests, but he contends that the Attorney General's Office failed to produce all responsive records. Id. at 40-42.

On December 18, 2018, Leishman filed bar complaints against Defendants Shane Esquibel and Kari Hanson-two of the Attorney General's Office's “top employment lawyers”-alleging they violated several rules of professional conduct in responding to his workplace disability accommodation request, among other things. Id. at 1, 39, 132. The Office of Disciplinary counsel deferred further investigation into Leishman's complaints. Id. at 40.

Finally, in January 2019, Leishman submitted ethics complaints against four Assistant Attorneys General, alleging ethics violations concerning the use of “persons, money, or property for private gain,” which he alleges Defendant Kathryn Reynolds, the Executive Director of the Washington Executive Ethics Board, refused to accept. Id. at 45, 145, 148.

2.2 Procedural background.

On April 24, 2020, Leishman filed this case in King County Superior Court. Dkt. No. 1-2. The then-named defendants removed the case to federal court shortly after. Dkt. No. 1. Leishman amended his complaint in July 2020, naming additional defendants. Dkt. No. 11. Defendants moved to dismiss Leishman's complaint, and the Honorable Richard A. Jones, United States District Judge, granted in part and denied in part. Dkt. Nos. 26, 67. On April 26, 2021, Leishman filed a Second Amended Complaint, which Defendants also dismissed. Dkt. No. 68, 72. Leishman moved to amend his complaint once again. Dkt. No. 126. Judge Jones granted his motion, and denied Defendants' motion to dismiss Leishman's second amended complaint as moot. Dkt. No. 132. Leishman filed his Third Amended Complaint (“TAC”) on October 3, 2022. Dkt. No. 133. The State Defendants moved to dismiss Leishman's latest complaint.^[2]Dkt. Nos. 146, 148.

In October 2021, Leishman filed a related case under the Public Records Act against Defendant Office of the Governor in Thurston County Superior Court for its alleged failure to respond to Leishman's records requests from the year before. On August 25, 2023, Judge Mary Sue Wilson determined the Office of the Governor's responses to Leishman's public record requests were timely and dismissed Leishman's PRA action with prejudice. Dkt. No. 193-1 at 22.

On June 30, 2020, Leishman also filed a mandamus action in state court seeking an order commanding Reynolds to accept his Executive Ethics Board complaints in line with the Ethics in Public Service Act. The mandamus action is pending before Division Two of the Washington Court of Appeals. Dkt. No. 183 at 2.

3. DISCUSSION

3.1. Legal standards.

3.1.1. Rule 12(b)(6) standard.

The Court will grant a motion to dismiss only if the complaint fails to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). The plausibility standard is less than probability, “but it asks for more than a sheer possibility” that a defendant did something wrong. Id. (citations omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.''” Id. (quoting Twombly, 550 U.S. at 557). In other words, a plaintiff must have pled “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.

When considering a motion to dismiss, the Court accepts all factual allegations pled in the complaint as true and construes them in the light most favorable to the plaintiff. Lund v. Cowan, 5 F.4th 964, 968 (9th Cir. 2021). But courts “do not assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citations omitted). Thus, “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Id. (citation omitted).

3.1.2. Rule 12(g)(2) standard.

At various times, Leishman argues that Rule 12(g)(2) prevents the State Defendants from raising certain issues like the statute of limitations in successive motions to dismiss. Leishman is correct that some courts have applied Rule 12(g)(2) to deny a defendant's attempts to file multiple pre-answer motions to dismiss, finding such motions contravene the purpose of the Rule, which is “to prevent litigants from interposing defenses in a piecemeal fashion and eliminate unnecessary delay at the pleading stage.” Donnelli v. Peters Sec. Co., No. 02 C 0691, 2002 WL 2003217, at *3 (N.D. Ill. Aug. 29, 2002) (citations...