JACOB ATKINSON v. AARON‘S LLC, et al.
NO. 23-cv-1742-BJR
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
May 10, 2024
The Honorable Barbara J. Rothstein
AMENDED ORDER GRANTING MOTION TO DISMISS
The Equal Pay and Opportunities Act (“EPOA“),
II. BACKGROUND
A. Statutory Background
Washington State passed its first equal pay legislation, the Equal Pay Act, in 1943, and amended it for the first time in 2018, at which time it became known as the Equal Pay and Opportunities Act (“EPOA“). See
In 2019, the law was further updated to address discriminatory hiring practices by prohibiting employers “from seeking the wage or salary history of an applicant for employment in certain circumstances,” and by requiring “an employer to provide wage and salary information to applicants and employees” upon request, although only “after offering the applicant the position.”
In 2022, the Washington Legislature enacted the most recent amendment, which modified
The provision became effective January 1, 2023, and reads as follows:
(1) The employer must disclose in each posting for each job opening the wage scale or salary range, and a general description of all of the benefits and other compensation to be offered to the hired applicant. For the purposes of this section, “posting” means any solicitation intended to recruit job applicants for a specific available position, including recruitment done directly by an employer or indirectly through a third party, and includes any postings done electronically, or with a printed hard copy, that includes qualifications for desired applicants.
(2) Upon request of an employee offered an internal transfer to a new position or promotion, the employer must provide the wage scale or salary range for the employee‘s new position.
(3) This section only applies to employers with 15 or more employees.
(4) A job applicant or an employee is entitled to the remedies in
RCW 49.58.060 and49.58.070 for violations of this section. Recovery of any wages and interest must be calculated from the first date wages were owed to the employee.
In January 2024, House Bill 2349 was introduced to the Legislature, proposing to include the definition of “job applicant” as “a person who has made and submitted a bona fide application for employment for a position listed by an employer covered by this section.” House Bill 2349, Decl. Ex. 1, ECF No. 32.4 It also proposed the addition of a safe harbor provision for employers, giving them 10 days to correct the posting after written notice of non-compliance.
B. Factual and Procedural Background
On March 9, 2023, Jacob Atkinson applied for a job opening with Aaron‘s at its store in Longview, Washington. Compl. ¶¶ 8, 14-15, 29; Ex. 1, ECF No. 1-1. He alleges that the job opening for a sales associate was posted on Aaron‘s website (jobs.aarons.com) and did not disclose the wage scale or salary range.
Aaron‘s removed the case to this Court on November 13, 2023 on the basis of diversity jurisdiction,
III. LEGAL STANDARD
A. Dismissal Under Rule 12(b)(1)
When the movant does not offer affidavits or other evidence challenging the truth of the allegations in the complaint, the Court construes the motion as a facial attack on subject matter jurisdiction. See id. And the Court resolves a facial jurisdictional challenge “as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff‘s allegations as true and drawing all reasonable inferences in the plaintiff‘s favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court‘s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014).
With a factual Rule 12(b)(1) attack, a court may look beyond the complaint to matters of public record without having to convert the motion into one for summary judgment Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). If a factual motion is brought before the court, “the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction,” and the court need not presume the truthfulness of the plaintiff‘s allegations. Id.
The Court presumes that a case lies outside of its “limited jurisdiction” unless the plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). If at any time the court determines that it lacks subject matter jurisdiction, it must dismiss the action.
A motion to dismiss for failure to state a claim under Rule 12(b)(6) is properly granted if the complaint does not “contain 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)). The plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “A complaint may fail to show a right to relief either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory.” Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162 (9th Cir. 2016). When considering a motion to dismiss under Rule 12(b)(6), courts must accept the factual allegations in the complaint as true and construe such allegations in the light most favorable to the plaintiff. Interpipe Contracting, Inc. v. Becerra, 898 F.3d 879, 886-87 (9th Cir. 2018).
Typically, a court may not consider material beyond the pleadings in ruling on a Rule 12(b)(6) motion. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.” Id. at 908. The court may consider such documents so long as their authenticity is not contested, and the complaint relies on them. Id.; see also Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). If such documents conflict with a plaintiff‘s allegations in the complaint, the court need not accept the allegations as true. See Gonzalez v. Planned Parenthood of L.A., 759 F.3d 1112, 1115 (9th Cir. 2014) (“Although we normally treat all of plaintiff‘s factual allegations in a complaint as true, we need not . . . accept as
IV. DISCUSSION
Aaron‘s contends that Mr. Atkinson‘s “cursory allegations are insufficient to provide standing or a factual basis for his statutory claim,” noting that he filed sixteen other lawsuits based on nearly identical alleged violations. Mot. 3-4, n.1. Aaron‘s first argues that Mr. Atkinson lacks standing to bring a private cause of action, adding that he fails to allege that he was a Washington resident when he applied, that he applied in good faith with the intent of gaining employment, or that he suffered any injury.
A. Private cause of action for applicants
Aaron‘s maintains that the EPOA draws clear distinctions between employees and job applicants, and it authorizes only employees to bring a civil action for violation of the statute but does not authorize a job applicant to do so. Mot. 5. Mr. Atkinson contends that the statute plainly and unambiguously provides an applicant the right to sue for a violation of
When interpreting a state statute, a federal court must “determine what meaning the state‘s highest court would give to the law.” Brunozzi v. Cable Commc‘ns, Inc., 851 F.3d 978, 981 (9th Cir. 2017) (quoting Bass v. Cnty. of Butte, 458 F.3d 978, 981 (9th Cir. 2006)). Thus, the court must “follow the state‘s rules of statutory interpretation.” Id. Under Washington law, the goal is to “ascertain and carry out the Legislature‘s intent, and if the statute‘s meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.” Thurston Cnty. ex rel. Snaza v. City of Olympia, 193 Wn.2d 102, 107-08 (2019) (en banc) (citation omitted).
Therefore, the first step is to consider “the plain meaning of the statute.” Matter of Dependency of E.M., 197 Wn.2d 492, 499 (2021) (en banc) (citing Dep‘t of Ecology, 146 Wn.2d at 9-10). In doing so, the court derives meaning “solely from the plain language of the statute, considering the text of the provision, the context of the statute, related provisions, amendments to the provision, and the statutory scheme as a whole.” First Student, Inc. v. Dep‘t of Revenue, 194 Wn.2d 707, 710 (2019) (en banc); see also Dep‘t of Ecology, 146 Wn.2d at 10-12.
The remedies section of the job-posting statute provides that “[a] job applicant or an employee is entitled to the remedies in
Aaron‘s also argues that “the Legislature has the absolute right to provide different enforcement mechanisms for different aggrieved individuals.” Reply 2 (citing cases). Certainly, that is true, but the Legislature has not done so here. As stated by Aaron‘s, “the Court ‘must assume that the legislature meant precisely what it said and apply the statute as written.‘” Mot. 6, Reply 3 (quoting State v. Roggenkamp, 153 Wn.2d 614, 625 (2005)). Accordingly, the Court concludes that the statute authorizes a job applicant to bring a civil action for violation of
B. Out-of-state applicants are protected
Aaron‘s contends that the extraterritorial doctrine requires dismissal of this statutory cause of action because Mr. Atkinson was not a resident of Washington state when he applied for the posted position. Mot. 8-9 (citing Plaintiff‘s Application, Patrick Decl. Ex. A, ECF No. 26; Plaintiff‘s LinkedIn Profile, Fairchild Decl. Ex. D, ECF No. 25-4; Plaintiff‘s Website, Fairchild
Federal statutes are generally presumed to not have extraterritorial effect, i.e., they do not have force beyond the country‘s borders. See, e.g., Daramola v. Oracle Am., Inc., 92 F.4th 833, 837 (9th Cir. 2024) (“That presumption is this: ‘It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.‘” (quoting Abitron Austria GmbH v. Hetronic Int‘l, Inc., 600 U.S. 412, 417 (2023))). State courts also must determine the geographic scope of state statutes, but rather than apply a presumption against extraterritoriality, Washington state courts rely on ordinary principles of statutory interpretation. See, e.g., Thornell v. Seattle Serv. Bureau, Inc., 184 Wn.2d 793, 798-801 (2015) (holding that state consumer protection statute applies to out-of-state plaintiffs); Bostain v. Food Exp., Inc., 159 Wn.2d 700, 708 (2007) (holding that state wage statute requires overtime pay for work outside the state).
Applying Washington state‘s rules of statutory construction, discussed above, the Court concludes that nothing in the plain text of the statute limits the application to Washington resident applicants or employees, although enforcement is limited against employers engaging in business in Washington state. See
Further, it is not reasonable to expect that “postings,” defined as “solicitation intended to recruit job applicants for a specific available position, including . . . any postings done electronically,”
Accordingly, Mr. Atkinson‘s failure to allege that he was a resident of Washington when he applied for a position with Aaron‘s is not cause for dismissal.
“Under Article III, the Federal Judiciary is vested with the ‘Power’ to resolve not questions and issues but ‘Cases’ or ‘Controversies.‘” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 132 (2011). “Among other things, that limitation requires a plaintiff to have standing.” Fed. Election Comm‘n v. Cruz, 596 U.S. 289, 295-96 (2022). Whether plaintiffs have Article III standing to proceed with this lawsuit implicates the Court‘s subject matter jurisdiction. See Warth v. Seldin, 422 U.S. 490, 498 (1975) (stating that standing is jurisdictional). Even in a class action, “standing is the threshold issue. . . . If the individual plaintiff lacks standing, the court need never reach the class action issue.” Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003).
“[T]o establish standing, a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) ((citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992))). Plaintiffs bear the burden of establishing each of these elements “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. “At the pleading stage, general factual allegations of injury resulting from the defendant‘s conduct may suffice[.]” Id., accord Tingley v. Ferguson, 47 F.4th 1055, 1066 (9th Cir. 2022); see also Spokeo, Inc. v. Robins (Spokeo I), 578 U.S. 330, 338 (2016) as revised (May 24, 2016) (“[T]he plaintiff must clearly allege facts demonstrating each element.” (citation omitted)).
At issue here is the “[f]irst and foremost” of standing‘s three requirements—“a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical.” Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 103 (1998) (citations omitted). Aaron‘s argues that Mr. Atkinson makes only bare and conclusory assertions that he lost valuable time and was
Mr. Atkinson contends that “a statutory violation is an injury, even when intangible.” Opp‘n 8 (citing Patel v. Facebook Inc., 932 F.3d 1264, 1270-71 (9th Cir. 2019)). It is not as simple as Mr. Atkinson asserts. To establish an injury in fact, plaintiffs must show that they suffered “an invasion of a legally protected interest.” Lujan, 504 U.S. at 560 (citations omitted). Injury is particularized if it affects a plaintiff “in a personal and individual way.” Id. at 560 n.1. And it is concrete if it “actually exist[s],” meaning that it is “real, and not abstract.” Spokeo I, 578 U.S. at 340 (citations omitted). Further, “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 341. A plaintiff may not “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.” Id. “[T]he Supreme Court made clear that a plaintiff does not ‘automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.‘” Robins v. Spokeo, Inc. (Spokeo II), 867 F.3d 1108, 1112 (9th Cir. 2017) (quoting Spokeo I, 578 U.S. at 341). To establish a concrete injury, “the plaintiff must allege a statutory violation that caused him to suffer some harm that ‘actually exist[s]’ in the world; there must be an injury that is ‘real’ and not ‘abstract’ or merely ‘procedural.‘” Id. (quoting Spokeo I, 578 U.S. at 340).
Intangible injuries, such as the omission of statutorily required information, “can nevertheless be concrete.” Magadia v. Wal-Mart Assocs., Inc., 999 F.3d 668, 679 (9th Cir. 2021) (quoting Spokeo I, 578 U.S. at 340). “[A]n intangible injury may be concrete if it presents a material
The Ninth Circuit Court in Patel analyzed whether a violation of the statute at issue in that case presented a material risk of harm, considering both history and legislative judgment. 932 F.3d at 1270. The court used the two-step framework articulated by the Ninth Circuit in Spokeo II, 867 F.3d at 1113, and concluded that the statutory provisions “were established to protect an individual‘s ‘concrete interests’ in privacy, not merely procedural rights.” Id. at 1270-71, 1274 (citation omitted). “Under the common law, an intrusion into privacy rights by itself makes a defendant subject to liability.” Id. at 1274. The court then concluded that the alleged violation of the statutory requirements necessarily violated the plaintiffs’ substantive privacy interests, which conferred Article III standing. Id. at 1275.
The statutory provision at issue in this case is distinctly different from those in Patel and similar cases related to privacy interests. The failure to provide information, unlike a privacy violation, has no obvious analogue in the history of American courts. Nevertheless, Mr. Atkinson argues that the Washington “legislature has rightfully adjudged that an employer‘s failure to publish this information amounts to a real, concrete injury to applicants,” and he asserts that the “failure to
The informational interests discussed in the FDCPA cases related to a failure to include certain key information in a communication that was provided to the plaintiff, which caused the communication to be misleading, placing the plaintiff at immediate risk upon receipt.6 Similarly in Magadia, the Ninth Circuit determined that the defendant‘s failure to disclose statutorily required information on wage documents violated a concrete interest. 999 F.3d at 679. The documents were provided to employees, and without the mandated information, the employees had no way of knowing if their wages had been calculated accurately—the harm the statute was designed to prevent. Id. at 679-80. The Ninth Circuit Court confirmed that the “‘procedural violation of an
So too here. A job posting that does not contain compensation information is a technical violation, but it does not harm or create a material risk of harm to any individual‘s concrete interest. A nominal applicant with no interest in the position will neither receive a benefit from early pay disclosure nor be harmed by the lack thereof. There is no risk of harm to someone browsing job postings with no intent to apply or with intent only to find those that have no compensation included so they can go through the motion of applying and then sue for the technical violation.7 See Dutta v. State Farm Mut. Auto. Ins. Co., 895 F.3d 1166, 1172-73 (9th Cir. 2018) (“A plaintiff may not bring a generalized grievance, but rather must show a personal stake in the outcome of the controversy.” (citation omitted)).
While non-disclosure of information can give rise to an injury in fact, the non-disclosure is not an injury in and of itself. There is no risk of any harm from the lack of information until a person responds to the posting seeking to apply for the position. At that point, the information has relevance to the applicants, and puts them at risk of wasting time and effort only to learn that the job doesn‘t pay enough. And that is precisely the harm that the Legislature seeks to protect. See S.B. Rep. ESSB 5761, at 3 (taking into consideration that “[m]any candidates spend hours going through rounds of
Mr. Atkinson contends that because the EPOA is a civil rights statute, the threshold for Article III standing is lower. Opp‘n 11 (citing Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972)). In Trafficante, a discriminatory housing case, the Supreme Court interpreted statutory standing under the Fair Housing Act (“FHA“) and instructed courts to take a broad view of standing in civil rights cases, especially where private enforcement suits “are the primary method of obtaining compliance with the Act.” 409 U.S. at 209. The Ninth Circuit similarly instructed lower courts that plaintiffs suing under the FHA “[are] judged under a very liberal standing requirement.” Harris v. Itzhaki, 183 F.3d 1043, 1049 (9th Cir. 1999). The Ninth Circuit recognized had language in the ADA, similar to the FHA, allowing “any person”8 to bring a claim for injunctive relief, indicated that “testers” and “professional plaintiffs” could have standing to sue. See Langer v. Kiser, 57 F.4th 1085, 1094 (9th Cir. 2023), cert. denied, 144 S. Ct. 823 (2024), reh‘g denied, 23-742, 2024 WL 1348980 (U.S. Apr. 1, 2024) (citing cases). Nevertheless, the plaintiff was not relieved of the requirement to allege more than a technical violation, including sufficient future injury for the injunctive relief sought, actual knowledge of the violating barrier, and an intent to return to the location once the violation was cured. Id. at 1095-99. While a plaintiff‘s motivation may be irrelevant, the civil rights cases reinforce that standing requires allegations of sufficient personal injury. The Ninth Circuit observed that it does not require a plaintiff to engage in a “futile
In sum, the Court concludes that a violation of the statutory provision at issue here—a job posting with no compensation information included—is a technical or procedural violation that by itself does not manifest concrete injury but requires a “bona fide”9 applicant before there is a risk of harm. Plaintiffs must allege, at minimum, that they applied for the job with good-faith intent, and as such became personally exposed to the risk of harm caused by the violation.
Mr. Atkinson, perhaps recognizing that the allegations in his complaint are deficient, responds with a declaration that he provided in another of his lawsuits (Atkinson v. Washington Fine Wine & Spirits, LLC, No. 2:23-cv-01737-BJR (W.D. Wash. Jan. 19, 2024)). Emery Decl. Ex. 1. In it, he declares that he intends to reside in Washington and is committed to finding a full-time position in Washington. Id. ¶¶ 14, 21. He also declares that he was qualified for the position he applied for at Washington Fine Wine & Spirits, and he intended to seek that position. Id. ¶¶ 17-18. Mr. Atkinson also declares that he intends to accept a position if offered a well-paying job, and he continues to apply for open positions in Washington to supplement his income, but it is difficult to evaluate positions when so many Washington employers refuse to publish their wages for available positions. Id. ¶¶ 23-28. To survive a motion to dismiss, Mr. Atkinson need only allege facts, accepted as true, that give rise to a reasonable inference that he suffered an injury sufficiently concrete for the purposes of Article III. See Spokeo II, 867 F.3d at 1118. Mr. Atkinson‘s conclusory allegations in his complaint are insufficient. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988, opinion amended on denial of reh‘g, 275 F.3d 1187 (9th Cir. 2001) (“Nor is the court required
D. Failure to state a claim
Aaron‘s contends that Mr. Atkinson has also failed to allege the necessary elements to state a claim for the violation of
V. CONCLUSION
For the foregoing reasons,
- Defendant Aaron‘s, LLC‘s Motion to Dismiss, ECF No. 24, is GRANTED;
- This case is remanded to King County Superior Court.
AMENDED this 10th day of May 2024.
Barbara Jacobs Rothstein
U.S. District Court Judge