Antitrust Law Daily Wrap Up, RICO—W.D. Wash.: Ex-Google employee’s RICO claims barred by earlier complaints of defendants’ misconduct, (Feb 18, 2021)

By E. Darius Sturmer, J.D.

Plaintiff’s assertion that company and its attorney retaliated against her for filing EEOC complaint and interfered with the arbitration of her Title VII claims had already been considered and discarded by arbitrator, and her allegations of other misconduct not related to arbitration proceedings were simply implausible.

A former Google employee who had accused the company and one of its attorneys of pregnancy and gender discrimination and retaliation failed to adequately plead violations of federal racketeering law, invasion of privacy, or civil rights conspiracy by the defendants. The plaintiff’s allegations of misconduct by Google and its attorney during the investigation of an Equal Employment Opportunity Commission (EEOC) complaint she had brought and then in a private arbitration of her Title VII claim were subject to claim preclusion and barred from being relitigated, the court determined. Moreover, issue preclusion and untimeliness provided alternative grounds for dismissal of the arbitration-related claims, and her remaining claims rested on implausible allegations. Finding that none of the ex-employee’s arbitration-related claims could be saved by amendment, and that the RICO and other post-arbitration claims relied on "such strained conclusions and unwarranted inferences" that they did not appear redeemable either, the court dismissed all the claims with prejudice, terminating the action in full (Spivak v. Alphabet Inc., February 12, 2021, Pechman, M.).

Background. The plaintiff was employed by Google between 2012 and 2015. In June 2015, she filed an EEOC complaint against Google. She alleged that during the EEOC investigation, Google and its attorney made false allegations and statements and submitted falsified evidence to the EEOC. However, she later asked the Commission to close the investigation and issue a Notice of Right to Sue in June 2017.

Around the same time, a stayed arbitration between the parties recommenced, and the plaintiff asserted that the company and attorney engaged in further misconduct of a similar nature during these proceedings, along with various actions to intimidate or block the availability of the plaintiff’s potential witnesses. She filed a motion for sanctions detailing these allegations, but the arbitrator denied the motion.

Nevertheless, she maintained that "despite appearances," she actually won on the sanctions motion, and Google "spent years trying to discredit her because of her discrimination claims and because [they] feared criminal liability. Further, she claimed that the defendants "schemed to find a way to have it be documented that Plaintiff had been legally insane and suffering from schizophrenia or some other previously undiagnosed psychiatric delusional disorder."

At her request, the arbitrator dismissed the matter with prejudice in July 2019. She claimed that a now-dismissed defendant convinced her to dismiss her arbitration even though she received a $100,000 settlement offer from Google.

The plaintiff also alleged that, beyond the arbitration, Google led a conspiracy to cause her to dismiss her Title VII claims and interfere with her ability to be a witness against it. Actions that were allegedly part of this included myriad invasions of privacy, "conspiring with Facebook to scuttle [the plaintiff’s] job application at Facebook while the arbitration was pending," intimidation, and "a Google involved plot that led to her arrest in Florida for stalking" the now-dismissed defendant who had convinced her to dismiss her arbitration.

Claim preclusion. The doctrine of res judicata—claim preclusion—barred the plaintiff from relitigating any claims premised on the defendant’s arbitration-related conduct, the court held. The plaintiff’s arbitration-related claims were sufficiently identical, sharing a common nucleus of facts. Moreover, the plaintiff was seeking to vindicate the same Title VII rights that were at issue in the arbitration, as was evident in the relief she sought and the injuries she claimed in this case—"the loss of [her] claims in arbitration." There was no merit to the plaintiff’s contention that she could not have brought her conspiracy claims until she learned of them well after the litigation," in the court’s view, because the facts in the two sets of claims were entirely overlapping and the plaintiff made no assertion of any material facts being concealed.

In addition, each of the other three elements of identify of claims was satisfied, the court stated. First, the rights established in the arbitration would be destroyed in this action if the plaintiff were to succeed. Second, both of the plaintiff’s suits involved the infringement of the same rights, her Title VII rights. Third, the evidence here was "essentially identical with the regard to the arbitration-related conduct." The court noted that collateral estoppel constituted an alternative basis on which the arbitration-related conduct claims were barred and that they were also barred by the time limits set by the Federal Arbitration Act.

Remaining RICO claims. The only claims not prohibited, the court remarked, were the plaintiff’s RICO and 42 U.S.C. 1985 claims premised on allegations of Google’s post-arbitration conduct—which she claimed impacted her ability to participate in federal or state actions—and her invasion of privacy claims based on post-arbitration conduct.

However, the court said, it had to dismiss the RICO claim for lack of standing, failure to allege a racketeering enterprise, and failure to allege a pattern of racketeering. Neither of the injuries the plaintiff alleged—loss of her job due to "false charges" and limitations in future employment—was a cognizable injury to "business or property" as required under RICO. She made no credible allegations of an enterprise involving the defendants, merely alleging "explicit agreements" that she never identified. Finally, the plaintiff’s contentions that Google and the attorney "influenced/corrupted judges and threatened violence against her and her family" were based on subjective beliefs and unreasonable inferences, not credible factual allegations that could be accepted as true for purposes of establishing a pattern of racketeering.

Given that there were no plausible allegations to support a substantive RICO claim under 1962(c), the plaintiff’s RICO conspiracy claim under 1962(d) also necessarily failed, the court concluded.

This case is No. 2:20-cv-01480-MJP.

Attorneys: Rivka Spivak, pro se. Katie Loberstein (Miller Nash Graham & Dunn LLP) for Alphabet Inc.

Companies: Alphabet Inc.

Cases: RICO WashingtonNews