Harris v. Skanska USA Building Inc.

[5] UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON [6] AT SEATTLE [7] QUINTE HARRIS, an individual, CASE NO. C22-555RSM [8] Plaintiff, ORDER GRANTING MOTION TO 9 DISMISS WITH LEAVE TO v. AMEND [10] SKANSKA USA BUILDING INC., 11 SKANSKA BALFOUR BEATTY JV, MICROSOFT CORPORATION, and 12 BALFOUR BEATTY CONSTRUCTION, corporations, [13] Defendants. [14] I. INTRODUCTION [15] This matter comes before the Court on Defendant Microsoft’s Motion to Dismiss under [16] Rule 12(b)(6). Dkt. #23. Plaintiff Quinte Harris opposes the Motion. Dkt. #31. The Court has [17] determined oral argument is unnecessary. For the reasons stated below, the Court GRANTS [18] Defendant’s Motion and dismisses Plaintiff’s claims with leave to amend. [19] II. BACKGROUND1 [20] Plaintiff Quinte Harris is a 47-year-old African American man. See Dkt. #22 at 3. In [21] April 2021, Mr. Harris was hired as a journeyman laborer to work at Microsoft’s Redmond [23] 1 Except as otherwise noted, the following background facts are taken from Plaintiff’s Complaint, Dkt. #22, and 24 accepted as true for purposes of ruling on this Motion to Dismiss. 1 campus modernization construction site. Id. at 5. He was hired directly through a joint venture between Balfour Beatty Construction (“Balfour Beatty”) and Skanska USA Building, Inc. [2] (“Skanska”). Id. Plaintiff alleges, without further detail, that Defendant Microsoft retained some [3] control over its Redmond campus jobsite. Id. at 6. On or about May 12, 2021, Mr. Harris became [4] aware of racial hostility from certain white construction workers. Id. at 7. The details of this [5] hostility, though pled, are not relevant to the instant motion. Mr. Harris tried pursuing the proper [6] channels to report the racism and discrimination experienced. Id. Nothing was done to address [7] the discrimination claims and Mr. Harris faced subsequent retaliation. Id. at 10. He continued to [8] face interference with his work through September 2021. Id. He then sat down for a public [9] interview with a local journalist on October 22, 2021. Id. at 11. Given the nature of the interview, [10] Microsoft was on notice about Mr. Harris’s allegations. Id. Conditions continued to deteriorate [11] for Mr. Harris at work through November 2021. Id. at 13. Finally on January 7, 2022, Mr. Harris [12] was terminated from his job. Id. Mr. Harris then filed suit, bringing several claims [13] (discrimination, retaliation, wrongful termination, negligence, and breach of contract) against all [14] Defendants. Id. [15] Defendants Skanska and Balfour Beatty do not oppose the relief requested by Microsoft [16] in its Motion to Dismiss. See Dkt. #30. [17] III. DISCUSSION [18] A. Legal Standard under Rule 12(b)(6) [19] In making a 12(b)(6) assessment, the court accepts all facts alleged in the complaint as [20] true, and makes all inferences in the light most favorable to the non-moving party. Baker v. [21] Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted). [22] However, the court is not required to accept as true a “legal conclusion couched as a factual [23] allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 [24] 1 U.S. 544 , 555 (2007)). The complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678 . This requirement is met when [2] the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the [3] defendant is liable for the misconduct alleged.” Id. The complaint need not include detailed [4] allegations, but it must have “more than labels and conclusions, and a formulaic recitation of the [5] elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Absent facial plausibility, [6] a plaintiff’s claims must be dismissed. Id. at 570. [7] Where a complaint is dismissed for failure to state a claim, “leave to amend should be [8] granted unless the court determines that the allegation of other facts consistent with the challenged [9] pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture [10] Co., 806 F.2d 1393 , 1401 (9th Cir. 1986). [11] B. Unlawful Employment Discrimination, Retaliation, and Wrongful Termination [12] Claims (Claims I, II, III and IV) [13] Defendant argues that under Title VII and RCW 49.60.180 Microsoft is not considered to [14] be Plaintiff’s employer, rendering Harris’s claims for unlawful employment discrimination, [15] retaliation, and wrongful termination futile. See Dkt. #23 at 4-5. [16] For any of these four claims to be valid, an employer-employee relationship must exist [17] between Harris and Microsoft. See Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th [18] Cir. 1980). Common-law agency principles are used to analyze whether an employer-employee [19] relationship exists under Title VII. See EEOC v. Global Horizons, Inc., 915 F.3d 631, 637 (9th [20] Cir. 2019). “Under the common-law test, the ‘principal guidepost’ is the element of control— [21] that is, ‘the extent of control that one may exercise over the details of the work of the other.’” Id. [22] at 638 (quoting Clackamas Gastroenterology Assocs., P.C. v. Wells, 438 U.S. 440 , 448 (2003)). [23] Similarly, courts in Washington assess the “right to control the manner of doing the work [24] 1 involved” to determine whether an employer-employee relationship exists under RCW 49.60.180. See DeWater v. State, 130 Wn.2d 128, 140 , 921 P.2d 1059, 1065 (1996). [2] Plaintiff alleges that Microsoft is liable here because it was the landowner. See Dkt. #22 [3] at 18-19. He also asserts that because Skanska and Balfour Beatty were acting as Microsoft’s [4] agents, managing its property during construction, Microsoft is liable for their unlawful conduct [5] under the doctrine of respondeat superior. See Dkt. #31 at 7 (quoting Burlington Indus., Inc. v. [6] Ellerth, 524 U.S. 742, 764 (1998)).2 The Court disagrees with both theories of liability. Plaintiff [7] has not pled that Microsoft was an employer, or had any control over Harris’s employment, details [8] or manner of his work. While courts can also look to agency law principles to determine whether [9] someone is an employer under Title VII, Plaintiff has not pled sufficient facts to show there is a [10] principal/agent connection between Microsoft and Harris. Anderson v. Pac. Maritime Ass’n, 336 11 F.3d 924, 930 (9th Cir. 2003) (this connection is required for a claim to fall under Title VII). This [12] alone is dispositive. [13] Consequently, the remaining claims cannot be proven because “[a]n action for wrongful [14] discharge depends, by definition, upon termination of employment.” See Awana v. Port of [15] Seattle, 121 Wn. App. 429, 432 , 89 P.3d 291, 292 (2004). Since Plaintiff has not shown [16] Defendant Microsoft owed him a duty in the first place (as there is no employer-employee [17] relationship), any arguments related to nondelegable duties against discrimination, retaliation, or [18] unlawful termination are irrelevant. Accordingly, Plaintiff’s claims I, II, III, and IV are properly [19] dismissed against this Defendant. [20] C. Common-Law Duty (Claims V and VII) [23] 2 This case is not factually on point here as it stood for the proposition that an employer was liable to one employee 24 for the conduct of another employee. 1 Plaintiff next alleges that Microsoft was negligent in its supervision of Skanska and Balfour Beatty and in failing to correct a hostile work environment. See Dkt. #22 at 23-24. He [2] further asserts that Microsoft is liable for negligent acts of its agents. Id. Similar to the previous [3] claims, Defendant argues that it did not owe Plaintiff any duty. See Dkt. #23 at 10 (quoting [4] Vargas v. Inland Washington, LLC, 194 Wn.2d 720 , 724, 452 P.3d 1205 , 1209 (2019) (“To prove [5] negligence, [Plaintiff] must show the existence of a duty, breach of the duty, and injury to plaintiff [6] proximately caused by the breach.”)). Furthermore, Defendant asserts that retention of control is [7] a prerequisite to finding any common-law duty of negligence. See Dkt. #34 at 5-6 (quoting [8] Eylander v. Prologis Targeted U.S. Logistics Fund, 513 P.3d 834 , 836 (Wash. Ct. App. 2022). In [9] response, Plaintiff asserts that Microsoft was on notice about the discrimination and hostility [10] Harris was encountering. See Dkt. #31 at 9-10. Thus, he argues, Microsoft’s involvement in the [11] culture of the worksite is a “believable inference” that it owed a duty to intervene and alleviate [12] the alleged discrimination. Id. at 6. [13] The Court agrees with Microsoft that Plaintiff has not pled sufficient facts here. Plaintiff has [14] not alleged that Microsoft engaged in any discrimination itself. Furthermore, Plaintiff has failed [15] to allege any facts showing that Microsoft retained any control over the manner of work on the [16] job site or that Harris was injured within the scope of that control.3 See Farias v. Port Blakely [17] Co., 22 Wn. App. 2d 467, 473, 512 P.3d 574 , 581 (2022). Finally, Plaintiff has failed to provide [18] any authority to back up his assertions that being on notice about discrimination constitutes a duty [21] 3 Plaintiff asserts that whether Microsoft retained any control is a question of fact and should be left to the trier of fact. See Dkt. #31 at 9. However, Plaintiff has not pled enough facts thus far that allows the Court to draw reasonable [22] inferences that Defendant is liable here for the misconduct alleged. Absent facial plausibility, a plaintiff’s claims must be dismissed. [24] 1 or liability on behalf of a landowner or client of construction company without more factual support. Thus, Plaintiff’s negligence claims (Claims V and VII) are also properly dismissed. [2] D. Third-Party Beneficiary (Claims VI and VIII) [3] Defendants argue that Harris has failed to allege he had any contractual relationship with [4] Microsoft, and thus cannot enforce a valid breach of contract claim or be entitled to relief under [5] 42 U.S.C. § 1981 . See Dkt. #23 at 12-14. Under the statute, a claim “must initially identify an [6] impaired ‘contractual relationship,’ under which the plaintiff has rights.” Domino’s Pizza, Inc. v. [7] McDonald, 546 U.S. 470, 476 (2006) (quoting 42 U.S.C. §191 (b)). While a third-party [8] beneficiary may be able to bring a section 1981 claim, Plaintiff has failed to allege he is such a [9] beneficiary. Plaintiff does not cite to any provisions in Microsoft’s contract with Skanska and [10] Balfour Beatty, but simply asserts that he was “an intended third party beneficiary” of that [11] contract as implied by its terms. See Dkt. #31 at 11-12 (noting “as [a] worker on the jobsite, [he] [12] was a natural beneficiary of the” contract). The Court disagrees. This principle has been rejected [13] by Washington courts. These courts have “recognized that a party must be intended as a third [14] party beneficiary to benefit from a contract,” and that “[a]n employee is not automatically [15] considered a third party beneficiary covered by an employer’s contract.” See Minton v. Ralston [16] Purina Co., 146 Wn.2d 385 , 47 P.3d 556 (2002). Accordingly, Plaintiff’s claims VI and VIII are [17] properly dismissed. [18] E. Leave to Amend [19] A “court should freely give leave [to amend] when justice so requires,” Fed. R. Civ. P. [20] 15(a)(2). Courts apply this policy with “extreme liberality.” Eminence Capital, LLC v. Aspeon, [21] Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). Five factors are commonly used to assess the propriety [22] of granting leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) [23] futility of amendment, and (5) whether plaintiff has previously amended the complaint. Allen v. [24] 1 City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990); Foman v. Davis, 371 U.S. 178, 182 (1962). In conducting this five-factor analysis, the court must grant all inferences in favor of [2] allowing amendment. Griggs v. Pace Am. Group, Inc., 170 F.3d 877 , 880 (9th Cir. 1999). In [3] addition, the court must be mindful of the fact that, for each of these factors, the party opposing [4] amendment has the burden of showing that amendment is not warranted. DCD Programs, Ltd. [5] v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987); see also Richardson v. United States, 841 F.2d 6 993, 999 (9th Cir. 1988). [7] The Court finds that the above deficiencies with the Complaint can possibly be cured by [8] amendment. There has been no evidence of undue delay or bad faith. Defendant has failed to [9] show that any amendment would be futile. Prejudice to Defendant if amendment is permitted [10] will be minimal. Weighing all of the above factors, leave to amend will be granted. [11] IV. CONCLUSION [12] Having reviewed the relevant pleadings and the remainder of the record, the Court hereby [13] finds and ORDERS that Defendant Microsoft’s Motion to Dismiss Plaintiff’s Complaint under [14] Rule 12(b)(6), Dkt. #23, is GRANTED. Plaintiff’s claims are DISMISSED with leave to amend. [15] Plaintiff shall have thirty (30) days to file an amended complaint. If Plaintiff fails to do so, [16] Microsoft will be removed as a Defendant in this case. [17] DATED this 3rd day of November 2022. [19] A [20] RICARDO S. MARTINEZ 21 UNITED STATES DISTRICT JUDGE