Opinion

Ellsworth

Court: District Court, W.D. Washington
Filed: Aug 17, 2026
Cited by: 0 cases

The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7 AT SEATTLE

ELKE NICOLE ELLSWORTH, Case No. C24-1238RSL

10 Plaintiff, ORDER GRANTING

11 v. MOTION TO DISMISS

12 WASHINGTON STATE DEPARTMENT OF

SOCIAL AND HEALTH SERVICES, et al.,

Defendant.

16 This matter comes before the Court on defendants’ motion to dismiss (Dkt. 29);

17 plaintiff’s pro se response (Dkt. 32); and defendants’ reply (Dkt. 33). Having reviewed the

motions and the record herein, the Court GRANTS the motion to dismiss as explained below.

20 I. Background

21 Plaintiff’s First Amended Complaint (“FAC”) (Dkt. 25) names as defendants the State of

Washington Department of Social and Health Services (“DSHS”); Wendy Long, the senior

24 director of a human resources division within the agency; and Donald Clintsman, the former

25 acting secretary for DSHS. Dkt. 25 at 2. It alleges that by terminating plaintiff from DSHS for

failure to obtain a COIVD-19 vaccine, defendants violated the First and Fourteenth

1 Amendments of the United States Constitution, Title VII of the Civil Rights Act of 1964, and

the Washington Law Against Discrimination (“WLAD”). Dkt. 25 at 2, 7, 11–16.

Defendants have filed a motion to dismiss arguing that plaintiff’s Title VII claim is time-

5 barred; plaintiff’s constitutional claims against individual defendants are barred by qualified

immunity; and, in addition, plaintiff’s claims fail as a matter of law. Dkt. 29. Defendants ask the

Court to dismiss plaintiff’s claims with prejudice. Id.

9 II. Discussion

A. Pleading Standard Under Fed. R. Civ. P. 12(b)(6)

The question for the Court on a motion to dismiss is whether the facts alleged in the

13 complaint sufficiently state a “plausible” ground for relief. Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). In the context of a motion under Rule 12(b)(6), the Court must “accept factual

allegations in the complaint as true and construe the pleadings in the light most favorable to the

17 nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.

2008) (citation omitted). The Court’s review is generally limited to the contents of the

complaint. Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). “We are not, however,

21 required to accept as true allegations that contradict exhibits attached to the Complaint or

matters properly subject to judicial notice, or allegations that are merely conclusory,

unwarranted deductions of fact, or unreasonable inferences.” Daniels-Hall v. Nat’l Educ. Ass’n,

25 629 F.3d 992, 998 (9th Cir. 2010).

To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege

27 “enough facts to state a claim to relief that is plausible on its face.” []Twombly,

550 U.S. [at 570]. A plausible claim includes “factual content that allows the court

1 to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” U.S. v. Corinthian Colls., 655 F.3d 984, 991 (9th Cir. 2011) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Under the pleading standards of Rule

3 8(a)(2), a party must make a “short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). . . . A complaint “that

offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

5 of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

Thus, “conclusory allegations of law and unwarranted inferences are insufficient

to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.

7 2004).

Benavidez v. Cty. of San Diego, 993 F.3d 1134, 1144–45 (9th Cir. 2021). In addition, the factual

allegations in a complaint “must be enough to rise above the speculative level.” Twombly, 550

11 U.S. 544 at 555 (2007). Finally, dismissal under Rule 12(b)(6) is proper “only where there is no

cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal

theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

15 B. Claim One: Violation of Title VII of the Civil Rights Act of 1964

This claim is time-barred. As plaintiff’s FAC alleges, she filed a charge of discrimination

with the Equal Employment Opportunity Commission (“EEOC”), alleging violations of Title

19 VII of the Civil Rights Act of 1964. Dkt. 25 at ¶ 4.2. Plaintiff further alleges that she obtained a

“Right to Sue” notice from the EEOC on April 20, 2022. Id. Under 42 U.S.C. § 2000(e)(1), a

plaintiff has 90 days to file a suit after receiving a “Right to Sue” notice. See also Payan v.

23 Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1121 (9th Cir. 2007) (“If a litigant does not

file suit within ninety days ‘[of] the date EEOC dismisses a claim,’ then the action is time-

barred.”) (citing Scholar v. Pac. Bell, 963 F.2d 264, 266-67 (9th Cir. 1992)). Plaintiff filed this

1 lawsuit on Aug. 13, 2024, more than two years after she alleges receiving a “Right to Sue”

notice from the EEOC. Dkt. 1.

Plaintiff acknowledges this sequence of events but argues that the doctrine of equitable

5 tolling should apply in this circumstance because “similar claims” were being dismissed with

prejudice in 2022 and she was thus “deterred” from timely filing suit. Dkt. 32 at 3. Plaintiff also

argues that in 2022 she lacked “necessary facts” that “could not reasonably have been

9 discovered through due diligence” and that the legal landscape has since shifted in her favor. Id.

at 2, 4. Plaintiff does not describe the “necessary facts” she was lacking in 2022 or why she

could not have obtained those facts through normal discovery procedures in the context of a

13 timely-filed lawsuit. Id. Plaintiff’s allegation that the law has shifted in her favor since 2022 is

not supported or warranted by the cases she cites for the proposition. Id. See also Dkt. 33 at

6:13–18. That leaves the Court with plaintiff’s claim that she was “deterred” from timely filing

17 suit by the perception that her claim would not succeed. Dkt. 32 at 3. That is insufficient to

establish that plaintiff exercised adequate diligence in preserving her legal rights and that her

case is one of those “extreme cases” warranting application of the doctrine of equitable tolling.

21 Scholar, 963 F.2d at 267-68 (9th Cir. 1992). Therefore, plaintiff’s Title VII claim will be

dismissed as time-barred.

C. Claim Two: Violation of the Fourteenth Amendment

25 Plaintiff claims defendants’ actions “violated the Equal Protection Clause of the

Fourteenth Amendment” and “violated the Due Process Clause of the Fourteenth Amendment.”

Dkt. 25 at ¶¶ 7.6–7.19.

1 1. Equal Protection

“The Equal Protection Clause of the Fourteenth Amendment commands that no State

shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is

5 essentially a direction that all persons similarly situated should be treated alike.” City of

Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Thus, “[t]o state an equal

protection claim of any stripe, whatever the level of scrutiny it invites, a plaintiff must show that

9 the defendant treated the plaintiff differently from similarly situated individuals.” Pimentel v.

Dreyfus, 670 F.3d 1096, 1106 (9th Cir. 2012). Plaintiff alleges that defendants violated the

Equal Protection Clause “because there was no rational basis for applying the [COVID vaccine]

13 mandate to fully remote employees who did not share the same risk profile as in-person

employees.” Dkt. 25 at ¶ 7.7. The vaccination mandate plaintiff is challenging here required “all

state workers at cabinet agencies regardless of their work setting” to “be fully vaccinated against

17 COVID-19 by October 18, 2021, as a condition of employment.” Dkt. 25, Ex. 2. While plaintiff

may disagree with the decision to require vaccination of all state workers at cabinet agencies,

including those workers who were moved to remote work during the pandemic, she has not

21 alleged that the mandate she is challenging treated her “differently from similarly situated

individuals.” Pimentel, 670 F.3d at 1106 (9th Cir. 2012). Therefore, she has failed to state an

equal protection claim. Id.

25 Even if plaintiff’s FAC were to be construed as sufficiently stating and equal protection

claim, her FAC appears to invoke rational basis review (see Dkt. 25 at ¶ 7.7) and therefore

appears to concede that plaintiff is not claiming to be a member of a suspect class and is not

1 contending that a fundamental right is at issue with regard to her Equal Protection Clause claim.

See Brock v. City of Bellingham, No. 2:24-CV-850-BJR, 2025 WL 254725, at *13 (W.D. Wash.

Jan. 21, 2025), aff’d sub nom. Michael Brock et al. v. City of Bellingham et al., No. 25-1070,

5 2026 WL 1470574 (9th Cir. May 26, 2026) (where neither a suspect classification nor

fundamental right is at issue, an Equal Protection claim is subject to rational basis review).

Following the well-reasoned order of Judge Barbara J. Rothstein in Brock, this Court finds that

9 even if plaintiff had sufficiently stated an Equal Protection Clause claim, the vaccine mandate at

issue in this matter would survive rational basis review. Id. Therefore, plaintiff’s Equal

Protection Clause claim is dismissed with prejudice.1

13 2. Due Process

Plaintiff alleges that defendants’ actions “violated the Due Process Clause of the

Fourteenth Amendment because it deprived Plaintiff of her property interest in her employment

17 despite being a fully remote employee with no contact with the office, other employees, or the

public.” Dkt. 25 at ¶ 7.8. Plaintiff also argues that her due process rights were violated because

1 With respect to defendant DSHS, plaintiff’s claim is dismissed with prejudice for an additional

21 reason: DSHS is “not a person for the purposes of Section 1983 and cannot be sued for constitutional

violations unless it affirmatively waives sovereign immunity.” Seagraves v. Dep't of Child. Youth &

22 Fams., No. 3:24-CV-05081-TMC, 2024 WL 4253192, at *2 (W.D. Wash. Sept. 20, 2024). “Since it is

23 clear that no amendment could cure the fact that the State has not waived sovereign immunity,” this

Court dismisses this and all of plaintiff’s other constitutional claims against DSHS with prejudice. Id.

24 See also Gray v. Washington Dep’t of Transportation, No. 23-3278, 2024 WL 5001484, at *2 (9th Cir.

Dec. 6, 2024), cert. denied sub nom. Gray v. Washington State Dep’t of Transportation, 145 S. Ct. 2780,

222 L. Ed. 2d 1076 (2025).

1 she was not provided “a fair and individualized assessment of whether she posed any actual

risk.” Id. at ¶ 7.14. Plaintiff does not explicitly state whether she is bringing a procedural due

process claim, a substantive due process claim, or both. Id. at ¶¶ 7.6–7.19. To the extent plaintiff

5 is bringing a procedural due process claim, plaintiff’s FAC and the attached exhibits show that

she was provided all the process she was due. Id. at Ex. B. See also Michael Brock et al. v. City

of Bellingham et al., No. 25-1070, 2026 WL 1470574, at *2 (9th Cir. May 26, 2026) (“We have

9 already held that employees received sufficient process related to a vaccine mandate if they

received ‘notice of the vaccination requirements and of the consequence of termination for

failure to comply,’ and ‘opportunities to be heard for the purpose of religious and medical

13 exemptions.’”) (citing Curtis v. Inslee, 154 F.4th 678, 693 (9th Cir. 2025)). To the extent

plaintiff is bringing a substantive due process claim, she has not articulated a “careful

description” of a fundamental right or liberty interest that is implicated. Curtis, 154 F.4th at 691

17 (9th Cir. 2025). See also Dkt. 25. If plaintiff is alleging that the deprivation of her property

interest in continued employment implicates a fundamental right, she is incorrect. Dkt. 25 at

¶ 7.8. “[T]here is no fundamental right to continued employment in a particular job.” Roberts v.

21 Inslee, No. 2:23-CV-0295-TOR, 2024 WL 1160895, at *5 (E.D. Wash. Mar. 18, 2024), aff’d,

No. 24-1949, 2025 WL 3539135 (9th Cir. Dec. 10, 2025) (citing Massachusetts Bd. Of Ret. v.

Murgia, 427 U.S. 307, 313 (1976)). Therefore, plaintiff’s Due Process claim is dismissed with

25 prejudice.2

28 2 See supra, II.C.1 at n.1.

1 D. Claim Three: Violation of the Washington Law Against

Discrimination, RCW 49.60 (Failure to Accommodate)

Plaintiff alleges defendants failed to accommodate her sincerely held religious belief.

5 Dkt. 25 at ¶¶ 7.20–7.29. Plaintiff also alleges that her sincerely held religious belief prevented

her “compliance with the vaccine mandate.” Id at ¶ 7.21. Plaintiff alleges that employees at

DSHS were “provided Religious Exemption Request Forms” (Dkt. 25 at ¶ 5.8), but that she

9 neither submitted nor filled out a Religious Exemption Request Form because it “contained

intimidating and coercive language” (id. at ¶¶ 5.9–5.16) and “was designed to force employees

into a false certification” (id. at ¶ 7.3). See also id. at Ex. 12 (State of Washington Religious

13 Exemption Request Forms 1 and 2). Plaintiff alleges she spoke with her direct supervisor “about

obtaining a religious exemption” but her FAC does not allege that she specifically asked her

supervisor for a religious exemption. Id. at ¶ 5.15. Nor does her FAC allege that she told her

17 supervisor what the basis for her religious exemption might be and that her religious beliefs

conflicted with the vaccine mandate. Id. Thus, while plaintiff’s FAC alleges that she held a bona

fide religious belief that conflicted with the vaccine mandate, the FAC does not sufficiently

21 allege that plaintiff informed her employer that her bona fide religious belief conflicted with an

employment policy. That is an essential element of a failure-to-accommodate claim under the

WLAD. Bartholomew v. Washington, 693 F. Supp. 3d 1107, 1113 (W.D. Wash. 2023). See also

25 Ahmann v. Washington State Dep’t of Transportation, No. 2:23-CV-0140-TOR, 2025 WL

790631, at *6 (E.D. Wash. Mar. 12, 2025) (“The Court finds Plaintiff’s conversations with [his

1 supervisors] did not impute the knowledge of Plaintiff’s religious conflict with the COVID-19

vaccine to WSDOT.”).3 Therefore, plaintiff’s failure-to-accommodate claim is dismissed.

E. Claim Four: Violation of the First Amendment’s Free Exercise

5 Clause

The First Amendment’s Free Exercise Clause provides that “Congress shall make no law

. . . prohibiting the free exercise [of religion].” U.S. CONST. amend. I. “In assessing a Free

9 Exercise claim, the Court must first determine what level of scrutiny to apply. Rational basis

review applies to neutral laws of general applicability, while strict scrutiny applies to those

which are not neutral and/or which are not generally applicable.” Novelozo v. Port of Seattle,

13 No. C25-111-JNW, 2025 WL 2390433, at *3 (W.D. Wash. Aug. 18, 2025) (citing Fellowship of

Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 685-86 (9th Cir.

2023)).

17 Plaintiff alleges that defendants’ “coercive exemption process and blanket denial of

accommodations placed an unconstitutional burden on Plaintiff’s religious exercise” and that

defendants’ actions “were not the least restrictive means of achieving any compelling interest,

21 making them unconstitutional.” Dkt. 25 at ¶¶ 7.30–7.33. By invoking the “compelling interest”

24 3 In plaintiff’s response to defendants’ motion to dismiss, she states that it is “not true” that she

25 “did not discuss her religious beliefs with her supervisor.” Dkt. # 32 at 2. But on a motion to dismiss the

Court’s review is generally limited to the contents of the complaint. Campanelli v. Bockrath, 100 F.3d

26 1476, 1479 (9th Cir. 1996). In addition, plaintiff’s response does not contend that she informed her

employer that her bona fide religious belief conflicted with an employment policy. Dkt. # 32 at 2;

Bartholomew v. Washington, 693 F. Supp. 3d 1107, 1113 (W.D. Wash. 2023). It simply states that it is

28 “not true” that plaintiff “did not discuss her religious beliefs with her supervisor.” Id.

1 and “least restrictive means” tests, plaintiff appears to allege that strict scrutiny of defendants’

alleged First Amendment violation is appropriate rather than rational basis review. Id. See also

Bacon v. Woodward, 104 F.4th 744, 750–52 (9th Cir. 2024). But defendant’s FAC makes no

5 specific allegations as to whether or not the mandate at issue was a neutral law of general

applicability. Dkt. 25 at ¶¶ 7.30–7.33; Novelozo, No. C25-111-JNW, 2025 WL 2390433, at *3

(W.D. Wash. Aug. 18, 2025). As discussed supra (II.C.1), documents attached to plaintiff’s

9 FAC show that the vaccination mandate required “all state workers at cabinet agencies

regardless of their work setting” to “be fully vaccinated against COVID-19 by October 18, 2021,

as a condition of employment.” Dkt. 25, Ex. 2. In the absence of any allegation from plaintiff

13 that the vaccine mandate was not facially or operationally neutral, this sufficiently demonstrates

neutrality. Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1076 (9th Cir. 2015). Similarly, in the

absence of any allegation from plaintiff that the vaccine mandate was not generally applicable,

17 this sufficiently demonstrates general applicability. See also Pilz v. Inslee, No. 22-35508, 2023

WL 8866565, at *2 (9th Cir. Dec. 22, 2023) (“The Proclamation is also generally applicable, as

it applies to all relevant employees unless they can show that they are legally entitled to an

21 exemption.”) (citing Doe v. San Diego Unif. Sch. Dist., 19 F.4th 1173, 1177–78, 1180 (9th Cir.

2021)). Therefore, even assuming—without deciding—that plaintiff has sufficiently stated a free

exercise claim, on the facts alleged the vaccine mandate would not be subject to strict scrutiny.

25 Novelozo, No. C25-111-JNW, 2025 WL 2390433, at *3–4 (W.D. Wash. Aug. 18, 2025). Rather,

the vaccine mandate would be subject to rational basis review, which it satisfies. Id. Therefore,

1 plaintiff’s free exercise claim is dismissed. As to defendant DSHS, the claim is dismissed with

prejudice.4

F. Claim Five: Violation of the WLAD, RCW 49.60 (Retaliation)

5 Plaintiff alleges retaliation in violation of the WLAD. Dkt. 25 at ¶¶ 7.34–7.36. A prima

facie retaliation claim is established under the WLAD by showing: “(1) [the employee] engaged

in statutorily protected activity; (2) the employer took some adverse employment action against

9 the employee; and (3) there is a causal link between the protected activity and the adverse

action.” Lodis v. Corbis Holdings, Inc., 172 Wn. App. 835, 846 (2013). Plaintiff’s allegations in

this claim focus only on defendants’ alleged activities. Dkt. 25 at ¶¶ 7.34–7.36 (“The employer’s

13 exemption process was coercive . . . The exemption form was designed to force employees into

a false certification . . . .”). By failing to allege that a protected activity engaged in by plaintiff is

causally linked to defendants’ alleged adverse action(s), plaintiff has failed to allege the required

17 elements of a prima facie retaliation claim under the WLAD. Lodis, 172 Wn. App. at 846

(2013). Therefore, plaintiff’s retaliation claim shall be dismissed.5

III. Conclusion

21 For all the foregoing reasons, defendants’ motion to dismiss (Dkt. 29) is GRANTED. As

to the claims that are dismissed without prejudice: If plaintiff believes she can, consistent with

4 See supra, II.C.1 at n.1.

5 Given that the Court has now found all of plaintiff’s state law and constitutional claims

deficient as a matter of law, it need not—and does not—analyze the qualified immunity issue raised by

28 defendants. Dkt. 29 at 17–19.

1 her Rule 11 obligations, remedy the deficiencies identified in this Order, she may file a motion

for leave to amend that complies with LCR 15 within thirty (30) days of the date of this Order.

IT IS SO ORDERED.

DATED this 17th day of August, 2026.

10 Robert S. Lasnik

United States District Judge

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