Brooks-Joseph v. City of Seattle

1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 8 TERRI BROOKS-JOSEPH, Case No. C22-1078RSL 9 Plaintiff, ORDER GRANTING 10 v. DEFENDANTS’ MOTION FOR SUMMARY 11 CITY OF SEATTLE, et al., JUDGMENT 12 Defendants. 13 14 This matter comes before the Court on defendants City of Seattle and Seattle City Light’s 15 “Motion for Summary Judgment” (Dkt. # 18) and “Motion to Compel Re. Package of 16 Information Evidencing Plaintiff’s Whistleblowing Claim” (Dkt. # 29). The Court, having 17 reviewed the submissions of the parties and the remainder of the record, finds as follows: 18 I. Background 19 In October 2019, plaintiff Teri Brooks-Joseph, a 57-year-old Black woman, was hired as 20 a Term-Limited Temporary (“TLT”) IT Business Analyst with the City of Seattle Information 21 Technology Department (“ITD”). See Dkt. # 22 at 5; Dkt. # 35 at 1. This was an at-will position 22 with a duration of “up to three years.” Id. Plaintiff’s original hiring manager was Sharon Hunter. 23 See id. However, at some point between plaintiff’s hire date in October and December 16, 2019, 24 Signe Olausen became plaintiff’s manager. See Dkt. # 36 at 185. Plaintiff appears to have 25 excelled in her role at ITD – she received an “exceeds expectations” evaluation from Ms. 26 Olausen in her January 2020 performance review, see id. at 185-90, as well as a “There’s No ‘I’ 27 in Team” award “in recognition of [her] valuable contributions to Seattle IT,” id. at 183. On 28 January 24, 2020, Ms. Olausen scheduled a meeting with human resources advisor Seini Puloka 1 to “help promote [plaintiff] to a permanent senior level position” in light of plaintiff’s 2 “demonstrated skill at [business analyst] work and deep experience in information technology.” 3 Dkt. # 41 at 1-2; Dkt. # 36 at 191. 4 Following this conversation, plaintiff sought to apply for a permanent position that was 5 open under her former manager, Sharon Hunter. See Dkt. # 41 at 1. Plaintiff claims that she was 6 denied the opportunity to interview for the position, even after human resources intervened and 7 informed Hunter that plaintiff was to be interviewed. See id. at 1-2.1 8 Plaintiff’s contract with ITD was terminated in November 2020. See Dkt. # 35 at 2; Dkt. 9 # 18 at 2. However, on November 24, 2020, plaintiff was offered a contract position with Seattle 10 City Light (“SCL”) in the position of TLT Strategic Advisor 1. Dkt. # 21 at 6. Plaintiff’s offer 11 letter explained that she would “be responsible for supporting a wide range of activities 12 throughout the lifecycle of the Fusion project. This entails ensuring business needs are met by 13 Seattle IT in project delivery, accurate documentation is captured for future audit and control 14 purposes, and most importantly, requirements and therefore business benefits are met by the 15 project.” Id. The assignment was “expected to end on September 16th, 2022,” however, the offer 16 letter cautioned that it “may end at any time.” Id. The position was “covered by a collective 17 bargaining agreement represented by WSCCCE Local 21-CL StratAdvrs,” however, plaintiff 18 was informed in her offer letter that she “serve[d] at the discretion of the appointing authority.” 19 Id. 20 In June 2020, plaintiff attended a meeting in which she alleges that her colleagues on the 21 Fusion Project criticized one of the project managers in front of a client. See Dkt. # 36 at 141- 22 42. Plaintiff further alleges that at a later meeting, she reprimanded her colleagues for their 23 unprofessional behavior. Id. at 142-43; Dkt. # 1 at 7. Another project manager on the Fusion 24 Project, Susan Davidson, allegedly informed plaintiff that she had been hostile to her peers. Dkt. 25 26 1 Plaintiff offers a declaration from Puloka stating that she “was informed that [plaintiff] was denied an opportunity” to apply for the role. Dkt. # 41 at 1 (emphasis added). The declaration does not 27 indicate that Puloka has any personal knowledge regarding the denial of the opportunity to interview. 28 Id.; see Fed. R. Civ. P. 56(c). 1 # 1 at 7. Following this incident, plaintiff heard one of the colleagues who had been criticizing 2 the project manager in front of the client mutter “I don’t take orders from Black people.” Id. At 3 her deposition, plaintiff testified that the employee later apologized. See Dkt. # 19 at 25. 4 Plaintiff further asserts that on July 17, 2020, she had a meeting with Organizational 5 Change Management (“OCM”) Manager Lourdes Podwall in which Ms. Podwall informed 6 plaintiff that, with regard to the Fusion project, “SCL had reorganized teams and she would no 7 longer lead and/or make decisions about the Occupational Change Management team (OCM).” 8 Dkt. # 19 at 39. Plaintiff alleges that prior to this conversation, she had been acting as the 9 interim team lead. Id. Plaintiff states that Ms. Podwall “informed her that she could no longer be 10 the ‘face of the team,’” id., as Nick Cherf, a white man, was to be appointed as the OCM Lead 11 for the Fusion Project, Dkt. # 35 at 3. 12 In March 2021, plaintiff reached out to her Union Steward, Monica Jones, and the then- 13 president of her union, Ed Hill, to air her “complaints regarding being discriminated against, 14 ostracized in team meetings, constantly insulted and bullied by her management team,” Dkt. 15 # 38, as well as her concern that she was “working in several job classifications different than 16 the one she was hired into,” Dkt. # 39. These concerns were reported to and funneled through 17 several different human resources departments, see Dkt. # 38 at 2-3; Dkt. # 36 at 250-53, 263. 18 Ultimately, the City’s Human Resources Investigative Unit (“HRIU”) commenced an 19 investigation in April 2021 into plaintiff’s concerns that Sharon Hunter and others 20 “discriminated against [plaintiff] based on [plaintiff’s] age, race, and/or retaliated against 21 [plaintiff] by other acts.” Dkt. # 36 at 150; see Dkt. # 19 at 38-43. Specifically, HRIU 22 investigated plaintiff’s allegations that she had been removed from her role as team lead based 23 on racial discrimination, that her work product had been stolen and given to other team 24 members, and that Sharon Hunter had told a manager to malign plaintiff in plaintiff’s 25 employment file. Dkt. # 19 at 38-41. HRIU’s investigation report concluded that the evidence 26 available did not support plaintiff’s allegations. Id. 27 Also in March 2021, Susan Davidson, a project manager on the Fusion Project, sent an 28 email to plaintiff assigning her certain tasks to complete. Dkt. # 21 at 19-20. Plaintiff stated that 1 she could not perform the assigned work as it was outside what plaintiff understood her scope of 2 work to be, and further indicated that she would only do the work requested if she were 3 promoted to a Project Management General Lead position. Id. at 18. Davidson responded, 4 acknowledging plaintiff’s prior contributions to the project and explaining that “[t]his is a 5 challenging project and we need everyone to roll up their sleeves.” Id. at 17. Plaintiff responded 6 that she “graciously declines” Davidson’s request for assistance. Id. at 16. Following this 7 exchange, plaintiff’s manager, Britt Luzzi, and Director of Customer Operations, Marcus 8 Jackson, approached Seattle City Light’s People & Culture Business Partner Manager, Aldo 9 Nardiello, to “discuss some performance concerns they were having with [p]laintiff.” Id. at 2-3. 10 Nardiello “advised they counsel [p]laintiff on workplace expectations, as opposed to ending her 11 assignment.” Id. 12 In May 2021, Susan Davidson emailed plaintiff outlining Davidson’s “expectations of 13 [plaintiff’s] time” in an effort to determine if plaintiff had “time available to help with” other 14 project or program activities. Dkt. # 19 at 72-73. Plaintiff responded that she “work[s] daily to 15 support the team and to complete [her] [Business Analyst] responsibilities” and asked Davidson 16 to “explicate further on what is meant by ‘you are trying to determine if I have time available to 17 help with any number of project or program activities.’” Id. at 72. Plaintiff subsequently 18 followed up with a “status report.” Id. After thanking plaintiff for her status report, Davidson 19 inquired “[f]or things that you create, such as the business plan referenced in your report, who is 20 your audience?” Id. at 71-72. Plaintiff responded, “I will not be sending you my business plan.” 21 Id. at 71. Plaintiff’s manager, Britt Luzzi, responded to plaintiff’s refusal noting that “[e]ither all 22 work is a project need and therefore should be shared, vetted and all proper credit given to you 23 as the author, or the work is not needed by the project and therefore city time shouldn’t be used 24 to build private work.” Id. at 71. 25 On July 1, 2021, Davidson forwarded a May 10, 2021 email to Plaintiff, asking her to 26 update project documentation to ensure consistent file names. Id. at 83-84. Plaintiff forwarded 27 Davidson’s request to Thao Nguyen, Project Delivery Manager, stating that Davidson’s delay in 28 sending her the request was “pure negligence.” Id. at 81-82. In response to Nguyen’s email 1 seeking clarification, plaintiff stated that she believes “Susan [Davidson] needs further training 2 and not further document updates.” Id. at 80-81. Plaintiff asserted that the requested information 3 “is already there. We will need to teach Susan to read it by the 9th.” Id. at 81. 4 On July 2, 2021, Davidson sent plaintiff a request to reformat some data. Dkt. # 21 at 24- 5 26. Plaintiff refused, and referred a colleague of hers instead. Id. at 24. Plaintiff’s manager, Britt 6 Luzzi, chimed in on the email thread and asked that plaintiff give the request priority. Id. at 23- 7 24. Plaintiff again refused. Id. at 23. Luzzi responded that they would address the issue further 8 after the weekend. Id. Plaintiff replied that the information had already been provided and that 9 they would need to “teach Susan [Davidson] how to read it.” Id. at 22. Luzzi removed plaintiff’s 10 colleagues from the email thread and added Marcus Jackson. Id. Luzzi indicated to plaintiff that 11 “this type of response is disrespectful to another employee” and requested that plaintiff “[p]lease 12 take a moment in future and do not send an email to the team with negative connotations 13 towards another person.” Id. Luzzi further noted that treating others with “kindness and respect” 14 was “something we’ve talked about on previous occasions and my guidance toward following 15 workplace expectations stands.” Id. 16 Following this email exchange, Luzzi and Jackson met with Nardiello, who “agreed that 17 [p]laintiff’s professionalism and communication had not improved with counseling, and that the 18 emails demonstrated conduct that were inconsistent with SCL Workplace expectations: Mutual 19 Respect and Teamwork.” Id. at 4. Nardiello states that “considering [p]laintiff’s inappropriate 20 comments, as well as the fact that her assigned project was coming to an end, SCL made the 21 decision to end [p]laintiff’s temporary assignment, effective July 16, 2021.” Id. 22 On August 8, 2022, plaintiff filed an employment discrimination suit against the City of 23 Seattle and Seattle City Light (collectively, “City”) and individual city employees Susan 24 Davidson, Lourdes Podwall, Britt Luzzi, and Sharon Hunter, along with their respective “John 25 Doe” spouses (collectively “individual defendants”). See Dkt. # 1. She asserts nine causes of 26 action, including (1) racial discrimination in violation of Title VII of the Civil Rights Act, as 27 amended; (2) racial discrimination in violation of the Washington Law Against Discrimination 28 (“WLAD”); (3) gender discrimination in violation of Title VII; (4) gender discrimination in 1 violation of the WLAD; (5) violations of the Washington State Whistleblower Protection Act, as 2 well as the City of Seattle’s whistleblower protections; (6) age discrimination in violation of the 3 WLAD; (7) age discrimination in violation of the Age Discrimination in Employment Act 4 (“ADEA”); (8) negligent supervision and negligent retention; and (9) wrongful discharge. Id. 5 On August 8, 2023, following the close of discovery, defendants City of Seattle and 6 Seattle City Light filed a motion for summary judgment, asking that the Court dismiss all of 7 plaintiff’s claims. See Dkt. # 18. 8 II. Legal Standard 9 Summary judgment is appropriate when, viewing the facts in the light most favorable to 10 the nonmoving party, there is no genuine issue of material fact that would preclude the entry of 11 judgment as a matter of law. The party seeking summary dismissal of the case “bears the initial 12 responsibility of informing the district court of the basis for its motion,” Celotex Corp. v. 13 Catrett, 477 U.S. 317, 323 (1986), and “citing to particular parts of materials in the record,” Fed. 14 R. Civ. P. 56(c), that show the absence of a genuine issue of material fact. Once the moving 15 party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to 16 designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. 17 at 324. The Court will “view the evidence in the light most favorable to the nonmoving party . . . 18 and draw all reasonable inferences in that party’s favor.” Colony Cove Props., LLC v. City of 19 Carson, 888 F.3d 445, 450 (9th Cir. 2018). 20 The Supreme Court has explained that “the plain language of Rule 56(c) mandates the 21 entry of summary judgment . . . against a party who fails to make a showing sufficient to 22 establish the existence of an element essential to that party’s case, and on which that party will 23 bear the burden of proof at trial.” Celotex, 477 U.S. at 322. In that case, “the burden on the 24 moving party may be discharged by ‘showing’—that is, pointing out to the district court—that 25 there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. 26 Accordingly, while plaintiff is correct that she is not required to “prove every element” of 27 her claims to survive summary judgment, see Dkt. # 35 at 6, 10, she must at least “make a 28 sufficient showing on an essential element of her case with respect to which she has the burden 1 of proof,” Celotex, 477 U.S. at 323.2 See Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006) 2 (affirming district court’s grant of summary judgment to defendants where plaintiffs failed to 3 make a prima facie case of disparate treatment); Leong v. Potter, 347 F.3d 1117, 1125 (9th 4 Cir.2003) (holding that the district court properly granted summary judgment where plaintiff 5 could not demonstrate a prima facie case of discrimination). 6 III. Analysis 7 A. Discrimination Claims 8 Plaintiff asserts a bevy of discrimination claims against defendants, including disparate 9 treatment and hostile work environment. Plaintiff contends that the alleged discrimination was 10 based on (1) her race, in violation of Title VII and the Washington Law Against Discrimination 11 (“WLAD”); (2) her gender, in violation of Title VII and WLAD; and (3) her age, in violation of 12 the Age Discrimination in Employment Act (“ADEA”) and WLAD. 3 13 14 2 Confusingly, plaintiff cites to N.L.R.B. v. Transportation Mgmt. Corp., 462 U.S. 393 (1983) and Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), apparently for the 15 proposition that a plaintiff “does not require clear and convincing proof” to withstand a motion for 16 summary judgment. See Dkt. # 35 at 6, 10. The cited cases do not deal with the summary judgment standard, but the burden of proof for claims brought under § 7(c) of the Administrative Procedure Act – 17 a statute not at issue in this case. 18 3 The Court notes that under Title VII, a complainant must file charges with the EEOC within 180 days of the alleged discrimination, or 300 days if the complainant initially instituted proceedings 19 with a state or local agency. 42 U.S.C. § 2000e–5(e); see Green v. L.A. Cnty. Superintendent of Sch., 883 20 F.2d 1472, 1473 (9th Cir. 1989). “[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan, 21 536 U.S. 101, 113 (2002); see also RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1061 (9th Cir. 22 2002). Acts that occurred outside the limitations period cannot evidence discrimination unless they are part of a hostile work environment, which “is ambient and persistent, and . . . continues to exist between 23 overt manifestations.” Zetwick v. Cty. of Yolo, 850 F.3d 436, 444–45 (9th Cir. 2017) (quoting Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108 n.1 (9th Cir. 1998)); see also RK Ventures, Inc., 307 F.3d at 24 1061 n.13. This framework is the same for claims under the ADEA. See U.S.C. § 626(d). 25 Here, plaintiff asserts that she “filed a charge against the Defendants with the Equal Employment Opportunity Commission (EEOC) on April 27, 2022.” Dkt. # 1 at 4. Accordingly, it would appear that – 26 excepting plaintiff’s hostile workplace claims – any claim of discrimination occurring prior to January 27 27, 2022 (ninety days prior to plaintiff filing her charge with the EEOC) is time-barred. However, because (1) neither party has raised this issue in its briefing; (2) “failure to file an EEOC charge within 28 1 i. Disparate Treatment 2 The Court first addresses plaintiff’s claims of disparate treatment under Title VII, ADEA, 3 and WLAD. 4 1. Title VII Disparate Treatment Claims 5 Title VII makes it an unlawful employment practice to “to fail or refuse to hire or to 6 discharge any individual, or otherwise to discriminate against any individual with respect to his 7 compensation, terms, conditions, or privileges of employment, because of such individual’s 8 race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Plaintiffs may 9 demonstrate discrimination under a theory of disparate treatment. See Wood v. City of San 10 Diego, 678 F.3d 1075, 1081 (9th Cir. 2012). Disparate treatment occurs “where an employer has 11 treated a particular person less favorably than others because of a protected trait.” Id. “Failure to 12 promote is a common manifestation of disparate treatment.” See McGinnis v. GTE Serv. Corp., 13 360 F.3d 1103, 1121-22 (9th Cir. 2004). As is failure to hire. See McDonnell Douglas Corp. v. 14 Green, 411 U.S. 792, 802 (1973). 15 In responding to a summary judgment motion in a Title VII disparate treatment case, a 16 plaintiff may produce direct or circumstantial evidence demonstrating that a discriminatory 17 reason more likely than not motivated the defendant’s decision, or alternatively may establish a 18 prima facie case under the burden-shifting framework set forth in McDonnell Douglas Corp. v. 19 Green. See McGinest, 360 F.3d at 1122. 20 Under the McDonnell Douglas test: 21 First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff 22 succeeds in proving the prima facie case, the burden shifts to the defendant 23 to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. Third, should the defendant carry this burden, the plaintiff must 24 25 limitations,” Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000); and (3) WLAD requires that 26 “claims must be brought within three years under the general three-year statute of limitations for personal injury actions. RCW 4.16.080(2),” Antonius v. King Cnty., 153 Wn. 2d 256, 261-62 (2004), a 27 statute of limitation that encompasses the totality of plaintiff’s period of employment with defendants, 28 the Court will address plaintiff’s claims on the merits. 1 then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, 2 but were a pretext for discrimination. 3 4 Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (internal citations and 5 quotation marks omitted). 6 In order to prove a prima facie claim of Title VII discrimination based on disparate 7 treatment and satisfy the first step of the McDonnell Douglas test, the plaintiff must show that: 8 (a) she belonged to a protected class; (b) she was qualified for her job; (c) she was subjected to 9 an adverse employment action; and (d) similarly situated employees not in her protected class 10 received more favorable treatment. Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006) (citing 11 Kang v. U. Lim Am., Inc., 296 F.3d 810, 818 (9th Cir. 2002)).4 At summary judgment, the 12 degree of proof necessary to establish a prima facie case is “minimal and does not even need to 13 rise to the level of a preponderance of the evidence.” Lyons, 307 F.3d at 1112 (quoting Wallis v. 14 J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)). 15 “If established, the prima facie case creates a rebuttable presumption that the employer 16 unlawfully discriminated against the plaintiff.” Dominguez-Curry v. Nevada Transp. Dep’t, 424 17 F.3d 1027, 1037 (9th Cir. 2005). “The burden of production then shifts to the employer to 18 articulate a legitimate, nondiscriminatory reason for its action.” Id. If the employer meets this 19 burden, the presumption of unlawful discrimination “simply drops out of the picture.” St. Mary's 20 Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). The plaintiff then must produce sufficient 21 evidence to raise a genuine issue of material fact as to whether the employer’s proffered 22 4 “It is widely recognized that the [McDonnell Douglas] test is a flexible one and the prima facie 23 case described [therein] was ‘not necessarily applicable in every respect to differing factual situations.’” 24 McGinest, 360 F.3d at 1122 n.17. 25 Accordingly, where the disparate impact claim alleges failure to promote, the Ninth Circuit has described the prima facie case as requiring a showing that “(1) he belongs to a statutorily protected class, 26 (2) he applied for and was qualified for an available position, (3) he was rejected despite his qualifications, and (4) after the rejection, the position remained available and the employer continued to 27 review applicants possessing comparable qualifications.” Lyons v. England, 307 F.3d 1092, 1112 (9th 28 Cir. 2002). 1 nondiscriminatory reason is merely a pretext for discrimination. Coleman v. Quaker Oats Co., 2 232 F.3d 1271, 1282 (9th Cir.2000). “The plaintiff may show pretext either (1) by showing that 3 unlawful discrimination more likely motivated the employer, or (2) by showing that the 4 employer’s proffered explanation is unworthy of credence because it is inconsistent or otherwise 5 not believable.” Dominguez-Curry, 424 F.3d at 1037 (citing Godwin v. Hunt Wesson, Inc., 150 6 F.3d 1217, 1220-22 (9th Cir. 1998)). 7 2. ADEA Disparate Treatment Claims 8 The ADEA makes it unlawful “to fail or refuse to hire or to discharge any individual or 9 otherwise discriminate against any individual with respect to his compensation, terms, 10 conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. 11 § 623(a)(1). This prohibition applies to “individuals who are at least 40 years of age.” 29 U.S.C. 12 § 631(a). A plaintiff alleging discrimination under the ADEA may proceed under a theory of 13 disparate treatment. Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir. 1990). “Proof of 14 disparate treatment requires a showing that the employer treats some people less favorably than 15 others because of their age.” Id. (citation omitted). 16 Disparate treatment claims under the ADEA are also subject to the McDonnell Douglas 17 burden-shifting framework. Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 18 2008). To establish a prima facie case of age discrimination, the plaintiff must demonstrate that 19 “he was (1) at least forty years old, (2) performing his job satisfactorily, (3) [subject to an 20 adverse employment action], and (4) either replaced by substantially younger employees with 21 equal or inferior qualifications or discharged under circumstances otherwise ‘giving rise to an 22 inference of age discrimination.’” Id. (quoting Coleman v. Quaker Oats Co., 232 F.3d 1271, 23 1281 (9th Cir. 2000)).5 24 25 5 Similarly, “[i]n a failure-to-promote case, a plaintiff may establish a prima facie case of 26 discrimination in violation of the ADEA by producing evidence that he or she was (1) at least 27 forty years old, (2) qualified for the position for which an application was submitted, (3) denied the position, and (4) the promotion was given to a substantially younger person.” Shelley v. 28 1 3. WLAD Disparate Treatment Claims 2 WLAD prohibits employers from refusing to hire, discharging, or discriminating “against 3 any person in compensation or in other terms or conditions of employment” on the basis of a 4 protected characteristic, including age, gender, and race. RCW 49.60.180. A plaintiff may 5 establish a prima facie case of disparate treatment under WLAD either by offering direct 6 evidence of an employer’s discriminatory intent, or by satisfying the McDonnell Douglas 7 burden-shifting test. Alonso v. Qwest Commc’ns Co., LLC, 178 Wn. App. 734, 744 (2013) 8 (citing Kastanis v. Educ. Emps.’ Credit Union, 122 Wn. 2d 483, 491 (1993)); see also Fulton v. 9 State, Dep’t of Soc. & Health Servs., 169 Wn. App. 137, 148 (2012) (“When evaluating 10 summary judgment motions in employment discrimination cases under WLAD, Washington 11 courts have largely adopted the federal burden-shifting scheme announced in McDonnell 12 Douglas Corp. v. Green . . .”). “When an employee makes out a claim of disparate treatment 13 under the WLAD, like Title VII, the employer’s action is unlawful unless the employer has a 14 valid justification.” Blackburn v. State, 186 Wash. 2d 250, 258 (2016). 15 A plaintiff must meet the prima facie requirements for disparate treatment outlined in the 16 Title VII cases to demonstrate a prima facie case under WLAD. See Marquis v. City of Spokane, 17 130 Wn. 2d 97, 113 (1996) (explaining that a plaintiff must show “(1) membership in a 18 protected class; (2) the plaintiff was similarly situated to [non-members of her protected class], 19 i.e., that he or she was qualified for the position applied for or was performing substantially 20 equal work; (3) because of plaintiff’s [membership in a protected class] he or she was treated 21 differently than [non-members of the protected class]”). 22 More specifically, to demonstrate disparate treatment on a theory of discriminatory 23 discharge, the “plaintiff must make a prima facie case of discrimination by showing that (1) she 24 was within a statutorily protected class, (2) she was discharged by the defendant, (3) she was 25 doing satisfactory work, and (4) after her discharge, the position remained open and the 26 27 28 1 employer continued to seek applicants with qualifications similar to the plaintiff.” Mikkelsen v. 2 Pub. Util. Dist. No. 1 of Kittitas Cnty., 189 Wn. 2d 516, 527 (2017). 3 To demonstrate disparate treatment on a theory of discriminatory hiring or failure to 4 promote, the plaintiff must show “(i) that [the plaintiff] belongs to a [a protected class]; (ii) that 5 he [or she] applied and was qualified for a job for which the employer was seeking applicants; 6 (iii) that, despite his [or her] qualifications, he [or she] was rejected; and (iv) that, after his [or 7 her] rejection, the position remained open and the employer continued to seek applicants from 8 persons of complainant’s qualifications.” Hill v. BCTI Income Fund-I, 144 Wn. 2d 172, 181 9 (2001) (quoting McDonnell Douglas, 411 U.S. at 802). 10 To defeat an employer’s motion for summary judgment in an employment discrimination 11 case, an employee “must do more than express an opinion or make conclusory statements.” 12 Hiatt v. Walker Chevrolet Co., 120 Wn. 2d 57, 66 (1992); see also Marquis, 130 Wn. 2d at 105. 13 The employee must establish specific and material facts to support each element of her prima 14 facie case. Hiatt, 120 Wn.2d at 66. Unless a prima facie case of discrimination is set forth, the 15 defendant is entitled to prompt judgment as a matter of law. Kastanis, 122 Wn. 2d at 490. 16 4. Disparate Treatment Analysis 17 Here, plaintiff appears to allege that she suffered disparate treatment because she was (1) 18 not hired for the permanent positions she applied to; (2) not promoted; (3) removed from her 19 position as interim project lead; and (4) unfairly discharged from her position. See Dkt. # 35 at 20 11. As plaintiff does not offer direct evidence of defendant’s discriminatory intent, the Court 21 analyzes her claims under the McDonnell Douglas test. 22 Addressing plaintiff’s claims of discriminatory hiring and failure to promote first, the 23 Court finds that plaintiff has failed to state a prima facie case for either claim. While plaintiff 24 has established that she was a member of a protected class with regard to her race, age, and 25 gender, she has not made any effort to demonstrate that she was qualified for the positions to 26 which she applied, a required showing for failure to hire or failure to promote disparate 27 treatment claim under the WLAD, Title VII, or ADEA. See Dkt. # 35 at 9 (offering the 28 conclusory statement that “[d]espite having the training, education and expertise, Plaintiff was 1 not hired for any of the[] positions” she applied to). Instead, plaintiff merely provides the Court 2 with a list of job openings within the City of Seattle to which she applied. See Dkt. # 36 at 34- 3 36.6 Plaintiff makes no effort to describe the job requirements of these various positions, nor to 4 compare her own qualifications against these requirements.7 5 The WLAD, Title VII, and ADEA also require a plaintiff to demonstrate as part of her 6 prima facie case that “after his [or her] rejection, the position remained open and the employer 7 continued to seek applicants from persons of complainant’s qualifications.” McDonnell 8 Douglas, 411 U.S. at 802. Here, plaintiff has offered no evidence indicating whether the 9 positions remained open after plaintiff’s application was rejected or who was ultimately hired 10 into the roles to which she applied. While defendants offer data regarding the demographics of 11 the individuals hired into the positions plaintiff applied for, see Dkt. # 21; Dkt. # 22, it is 12 plaintiff’s burden to put forward evidence to support her prima facie case. See, e.g., Carderella 13 v. Napolitano, 471 F. App’x 681, 682-83 (9th Cir. 2012) (affirming district court’s finding that 14 plaintiff failed to establish a prima facie case of employment discrimination where plaintiff 15 acknowledged that he had “no information regarding the race or national origin of the 16 individuals ultimately selected for the vacant . . . positions”).8 17 18 6 Notably, plaintiff asserts that “there were 18 positions for which the Plaintiff either applied 19 and/or was qualified for,” Dkt. # 35 at 9, however the documents she provides the Court in her cited exhibit shows only 13 positions, four of which she applied for prior to being hired by the City of Seattle 20 in October 2019, see Dkt. # 36 at 34-39. 21 7 Plaintiff also argues that she was “blocked from applying and interviewing for advanced 22 positions” by Britt Luzzi and Sharon Hunter. See Dkt. # 35 at 4. Setting aside the fact that these conclusory assertions are insufficient to withstand a motion for summary judgement, see Arpin v. Santa 23 Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001) (explaining that conclusory statements unsupported by the record are insufficient to defeat a motion for summary judgment), the Court notes 24 that plaintiff has failed to either allege or produce any evidence indicating that Luzzi and Hunter’s 25 purported actions were taken as a result of discrimination against plaintiff on the basis of her membership in a protected class. 26 8 The Court notes that defendant has put forward evidence showing that – for the positions 27 defendants identified plaintiff as having applied to – seven out of the ten successful candidates were women, six out of the ten successful candidates were non-white, and seven out of the ten successful 28 1 As plaintiff has failed to meet her burden of demonstrating a prima facie case, the Court 2 finds that there is no genuine issue of material fact as to plaintiff’s hiring discrimination and 3 failure to promote claims.9 Summary judgment on these claims is granted to defendants. 4 In addition to her failure to promote and hiring discrimination claims, plaintiff appears to 5 suggest that she also faced disparate treatment when (1) she was removed from her role as 6 interim project lead on the Fusion project and replaced by Nick Cherf, a younger white man, see 7 Dkt. # 35 at 2-3; and (2) when she was discharged, see id. at 11. 8 First addressing plaintiff’s removal from the interim project lead position, the Court finds 9 that the first two elements of plaintiff’s prima facie case are met. What is less clear is whether 10 plaintiff was “subjected to an adverse employment action.” Based on the investigation 11 conducted by HRIU, plaintiff “acted as an informal Lead in the absence of the appointed project 12 Lead. There is no evidence that she was formally placed or replaced in the position.” Dkt. # 19 13 at 40. However, the Ninth Circuit has held that “[t]ransfers of job duties . . . if proven, would 14 constitute ‘adverse employment decisions.’” Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) 15 (quoting Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)). Given that the Court must 16 17 interviewed for these roles because “[p]laintiff did not meet minimal qualifications and/or there were 18 stronger applicants.” Id. at 4. 9 Plaintiff’s attempts to create a genuine issue of fact are unavailing. Plaintiff cites to the 19 declarations of former Union President Ed Hill and Union Representative Monica Jones for the 20 proposition that “there is conflicting witness testimony as to whether or not the Plaintiff was discriminated against, whether she was denied permanent positions as a result of that discrimination and 21 whether she was eventually terminated because of discrimination.” Dkt. # 35 at 11. Hill’s only 22 comments with regard to plaintiff’s failure to hire and failure to promote claims were that he “encouraged her to apply for lead positions since she was always doing the work. For some reason, she 23 was not deemed qualified to apply.” Dkt. # 39 at 3. Jones’s only comments were that “Ms. Brooks- Joseph was not properly compensated and was denied opportunities to apply for various permanent 24 positions, higher paying positions, and higher paying TLT management positions.” Dkt. # 38 at 4. 25 Putting aside the evidentiary issue of whether Ms. Jones and Mr. Hill have the required personal knowledge to opine on defendant’s hiring practices, see Fed. R. Evid. 603; Fed. R. Civ. P. 56(c)(4), 26 neither of these conclusory statements creates an issue of fact as to whether plaintiff was qualified for the positions to which she applied, or what happened with the job searches for those positions after she 27 was rejected – both of which are required to state a prima facie case. 28 1 view the facts in the light most favorable to the plaintiff, it concludes that there is at least a 2 material issue of fact as to whether plaintiff was subject to an adverse employment action. 3 Finally, although defendants do not dispute that Nick Cherf was not a member of plaintiff’s 4 protected classes (plaintiff asserts that Cherf was a “younger” “white” “male,” Dkt. # 35 at 3), 5 plaintiff has failed to demonstrate that he was “similarly situated.” See Moran, 447 F.3d at 755 6 (explaining that plaintiff must demonstrate they are “similarly situated in all material respects” 7 to employees they allege are receiving favorable treatment). Indeed, in the myriad declarations 8 plaintiff submitted to the Court, she identifies Cherf as the “OCM Lead,” see Dkt. # 36 at 53, 9 while her own title was “TLT Strategic Advisor 1,” Dkt. # 21 at 6. As plaintiff has failed to 10 demonstrate that Cherf was “similarly situated,” the Court finds that plaintiff has failed to 11 establish a prima facie case of disparate treatment.10 Summary judgment on this claim is granted 12 to defendants. 13 Finally, as to plaintiff’s wrongful discharge claim, the Court similarly finds that plaintiff 14 has not established a prima facie case.11 As an initial matter, plaintiff has not shown that 15 following her discharge, the position remained open and the employer continued to seek 16 applicants with qualifications similar to the plaintiff. McDonnell Douglas, 411 U.S at 802. 17 Indeed, Aldo Nardiello states that the decision to “end plaintiff’s temporary assignment” was 18 made in part because “her role in her assigned project was coming to an end.” Dkt. # 21 at 4. 19 Moreover, defendants have articulated a “legitimate, nondiscriminatory reason” for her 20 21 10 Furthermore, even assuming plaintiff could demonstrate a prima facie case of discrimination, 22 the Court finds that defendants have a “legitimate, nondiscriminatory reason” for replacing plaintiff. McDonnell Douglas, 411 U.S at 802. Specifically, because Seattle City Light “was now primarily 23 responsible for funding the majority of the project, they selected a different employee to continue 24 managing it and made other program changes.” Dkt. # 19 at 40. Plaintiff has failed to make any showing that this explanation is a pretext for discrimination. 25 11 Again, to the extent that plaintiff relies on declarations from Mr. Hill and Ms. Jones, neither 26 declaration provides any support for plaintiff’s contention that she was discharged as a result of racial, gender, or age discrimination. See Dkt. # 37; Dkt. # 38; see also Dkt. # 52 at 12-13 (Jones testifying in 27 her deposition that she could not opine whether or not plaintiff was subject to discrimination due to her 28 race, age or gender due to lack of personal knowledge). 1 termination. McDonnell Douglas, 411 U.S. at 802. Specifically, defendants point to plaintiff’s 2 refusal to provide requested work product and take on assigned tasks, and her disrespectful and 3 inappropriate communications with supervisors. See Dkt. # 18 at 5-7. Plaintiff has failed to 4 make any showing that this explanation is a pretext for discrimination. Accordingly, the Court 5 finds that there is no genuine issue of material fact as to plaintiff’s disparate treatment claim as it 6 relates to her termination. Summary judgment on this claim is granted to defendants. 7 The Court finds that – even viewing the facts in the light most favorable to the plaintiff – 8 plaintiff has failed to marshal the minimal amount of evidence required to make a prima facie 9 showing of disparate treatment. Accordingly, the Court grants defendants’ motion for summary 10 judgment on plaintiff’s disparate treatment claims under Title VII, WLAD and ADEA. 11 ii. Hostile Work Environment 12 The Court now turns to plaintiff’s hostile work environment claims. Discrimination under 13 Title VII also “encompasses the creation of a hostile work environment.” Meritor Sav. Bank, 14 FSB v. Vinson, 477 U.S. 57, 65 (1986) (Title VII guarantees “the right to work in an 15 environment free from discriminatory intimidation, ridicule, and insult”). “To prevail on a 16 hostile workplace claim premised on either race or [gender], a plaintiff must show: (1) that he 17 was subjected to verbal or physical conduct of a racial or [gender-based] nature; (2) that the 18 conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter 19 the conditions of the plaintiff’s employment and create an abusive work environment.” Vasquez 20 v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003), as amended (Jan. 2, 2004). “Analysis 21 of a hostile work environment claim is identical under the ADEA and Title VII, except that the 22 harassment must be shown as motivated by age, rather than the protected classes enumerated in 23 Title VII.” Richardson v. Hilton Resorts Corp., No. C18-340LEK-RLP, 2019 WL 1440248, at 24 *4 (D. Haw. Mar. 29, 2019). The WLAD requires substantively the same showing. See 25 Loeffelholz v. Univ. of Wash., 175 Wn. 2d 264, 275 (2012) (to establish a prima facie hostile 26 work environment claim, the plaintiff must allege facts proving that (1) the harassment was 27 unwelcome, (2) the harassment was because the plaintiff was a member of a protected class, (3) 28 1 the harassment affected the terms and conditions of employment, and (4) the harassment is 2 imputable to the employer). 3 Importantly, “[h]arassment is actionable only if it is sufficiently pervasive so as to alter 4 the conditions of employment and create an abusive working environment.” Alonso v. Qwest 5 Commc’ns Co., LLC, 178 Wn. App. 734, 749 (2013) (citing Antonius, 153 Wn. 2d at 261); 6 Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir.2000) (“In order to prevail on her 7 hostile work environment claim, [a plaintiff] must show that her workplace was permeated with 8 discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of 9 her employment”) (brackets, ellipses, and quotation marks omitted)). To determine whether 10 conduct was sufficiently severe or pervasive, the Court considers “all the circumstances, 11 including the frequency of the discriminatory conduct; its severity; whether it is physically 12 threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes 13 with an employee’s work performance.” Dominguez-Curry, 424 F.3d at 1034 (citation omitted). 14 In addition, “[t]he working environment must both subjectively and objectively be perceived as 15 abusive.” Vasquez, 349 F.3d at 642 (citation omitted); see also Bauer v. Nat’l Data Funding 16 Corp., 95 Wn. App. 1004 (1999). Importantly, the Supreme Court has cautioned that “Title VII 17 [is] not . . . a general civility code,” and therefore, “simple teasing, offhand comments, and 18 isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 19 terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 20 (1998) (citations and quotations omitted). 21 Here, plaintiff has failed to identify any unwelcome verbal or physical conduct she 22 received because of her age or gender. See generally Dkt. # 35. As to her hostile workplace 23 claims based on race, plaintiff contends that (1) she overheard a colleague state that the 24 colleague “doesn’t take orders from Black people” in response to plaintiff’s critique of the 25 colleague’s allegedly unprofessional conduct during a client meeting; (2) plaintiff was told by 26 defendant Podwall she could no longer be the “face” of the Fusion project. See Dkt. # 35 at 2-5. 27 As to the comment made by Podwall, the Court is unconvinced that plaintiff was told she could 28 no longer be the “face” of the Fusion project because of her race. Referring to an individual as 1 the “face” of a project, company or team is a common idiom. Here, Podwall explained to the 2 HRIU Investigator that because Seattle City Light “was now primarily responsible for funding 3 the majority of the project, they selected a different employee to continue managing it and made 4 other program changes.” Dkt. # 19 at 40. Plaintiff fails to provide any evidence to support her 5 subjective belief that Podwall’s statement was in reference to her race. 6 Thus, plaintiff’s hostile workplace claim rests on a single racially-motivated comment 7 made by a colleague.12 While this comment was by no means acceptable, it was an isolated 8 incident and plaintiff testified that the colleague later apologized for her statements. See Dkt. 9 # 19 at 25. Plaintiff has failed to demonstrate an issue of material fact as to whether the alleged 10 harassment was “sufficiently pervasive so as to alter the conditions of employment and create an 11 abusive working environment.” Brooks, 229 F.3d at 923. Accordingly, plaintiff’s hostile 12 workplace claims based on her race, age and gender are dismissed. Summary judgment on these 13 claims is granted to defendants. 14 B. Violation of State & Municipal Whistleblower Protections 15 Defendants have also moved for summary judgment on plaintiff’s claims alleging that 16 defendants violated both the Washington State Whistleblower Protection Act and the 17 whistleblower protections provided in the Seattle Municipal Code. See Dkt. # 1 at 12. 18 i. State Whistleblower Protection Act 19 Defendants argue that “[p]laintiff’s claim under the State Employee Whistleblower 20 Protection Act is barred because Plaintiff was not a state employee.” Dkt. # 18 at 20. 21 Specifically, the state whistleblower law provides that “[a]ny person who is a whistleblower, as 22 defined in RCW 42.40.020, and who has been subjected to workplace reprisal or retaliatory 23 action is presumed to have established a cause of action for the remedies provided” by the 24 25 12 While not raised in plaintiff’s response, see Dkt. # 35, defendants note that in plaintiff’s deposition, she discussed an instance where she was not invited to see view photos of her supervisor’s 26 trip to South Africa, and her belief that she was not invited because the supervisor “would talk about servants and things that they had while they were in South Africa.” Dkt. # 19 at 58-59; see also Dkt. 27 # 18 at 17-18. Given that plaintiff has offered only her own guess as to why she was not invited, the 28 Court finds that this event does not alter its analysis of plaintiff’s hostile workplace claim. 1 statute. RCW 42.40.050(1)(a). “Whistleblower” is defined as “[a]n employee who in good faith 2 reports alleged improper governmental action to the auditor or other public official” or “[a]n 3 employee who is perceived by the employer as reporting, whether they did or not.” RCW 4 42.40.020(10)(a). “Employee” is defined as “any individual employed or holding office in any 5 department or agency of state government.” RCW 42.40.020(2). Here, plaintiff not an employee 6 of “any department or agency of state government,” thus, she is not a protected whistleblower 7 under the statute. Accordingly, plaintiff’s claim under the Washington State Whistleblower 8 Protection Act is dismissed, and summary judgment is granted to defendants on this claim. 9 ii. Local Government Whistleblower Protection Act 10 In addition to the State Whistleblower Protection Act, which provides a cause of action to 11 state employees, “Chapter 42.41 RCW protects local government employees who disclose 12 improper government actions. As part of those protections, local government officials and 13 employees are prohibited from taking retaliatory action against whistle-blowers.” Woodbury v. 14 City of Seattle, 172 Wn. App. 747, 750 (2013) (citing RCW 42.41.040(1)). To seek relief, an 15 aggrieved local government employee must provide written notice of the charge of retaliation to 16 the local government’s governing body. RCW 42.41.040(2). Then, upon receipt of the response 17 of the local government, the employee “may request a hearing to establish that a retaliatory 18 action occurred and to obtain appropriate relief.” RCW 42.41.040(4). After receiving the 19 request, the local government applies to the office of administrative hearings for a proceeding 20 before an administrative law judge. RCW 42.41.040(5). The final decision of the administrative 21 law judge is subject to judicial review under the arbitrary and capricious standard. RCW 22 42.41.040(9). 23 Chapter 42.41 RCW also grants local governments the authority to promulgate their own 24 whistle-blower processes: 25 Any local government that has adopted or adopts a program for reporting alleged improper governmental actions and adjudicating retaliation 26 resulting from such reporting shall be exempt from this chapter if the 27 program meets the intent of this chapter. 28 1 RCW 42.41.050. Seattle has promulgated such rules, and the Washington Court of Appeals has 2 determined that “the procedures the City adopted allowing a whistle-blower to file a complaint 3 and report improper governmental conduct with the City and request an administrative hearing 4 [are] consistent with state law.” City of Seattle v. Swanson, 193 Wn. App. 795, 814-815 (2016) 5 (citing Woodbury, 172 Wn. App. at 751-52). Under Seattle’s Municipal Code, “[i]n order to 6 seek relief, an employee who believes he or she has been the subject of retaliation must file a 7 signed written complaint within 180 days of when” the retaliation occurred. SMC 4.20.860(A). 8 The complaint must be filed with the Seattle Ethics & Elections Commission (“SEEC”) 9 Executive Director. SMC 4.20.860(B). Notably, the Code further states that an employee may 10 only pursue a private cause of action under the whistleblower protection provisions “after filing 11 a timely and sufficient complaint with the Executive Director.” SMC 4.20.870(A). 12 Here, plaintiff failed to file a complaint with the SEEC Executive Director. Plaintiff 13 asserts only that she sent a meeting request to the Mayor’s office, and that she was too fearful to 14 file a complaint with the SEEC. See Dkt. # 19 at 34, 88. The SEEC further confirms that 15 plaintiff never filed a signed, written complaint of whistleblower retaliation. Dkt. # 20 at 2. 16 Because plaintiff has failed to follow the procedures articulated in both the state statute 17 governing whistleblower protection for local governments, and the specific Seattle Municipal 18 Code provisions, the Court finds that she does “not have the right to file a cause of action” in 19 this Court. Swanson, 193 Wn. App. at 815. Accordingly, plaintiff’s claim is dismissed and 20 defendants’ motion for summary judgment is granted. 21 C. Wrongful Discharge 22 In addition to her claims under the state and local government’s Whistleblower Protection 23 Acts, plaintiff also states a claim for wrongful discharge, alleging that her whistleblowing was a 24 “substantial factor” in defendant’s decision to terminate her, “given the proximity in time to 25 filing the complaint and her termination.” Dkt. # 1 at 16. 26 27 28 1 Washington courts “have adopted the tort of wrongful discharge in violation of public 2 policy as a narrow exception to the at-will doctrine.”13 Martin v. Gonzaga Univ., 191 Wn. 2d 3 712, 722-23 (2018) (citing Thompson v. St. Regis Paper Co., 102 Wn. 2d 219, 232-33 (1984)). 4 The tort for wrongful discharge in violation of public policy has generally been limited to four 5 scenarios, including where employees are fired in retaliation for reporting employer misconduct, 6 i.e., whistleblowing. Id. at 723 (citations and quotations omitted). 7 To prevail on a wrongful discharge claim, “[a] plaintiff must first establish a prima facie 8 case by producing evidence that the public-policy-linked conduct was a cause of the firing, and 9 may do so by circumstantial evidence.” Id. at 725. “If the plaintiff succeeds in presenting a 10 prima facie case, the burden then shifts to the employer to ‘articulate a legitimate nonpretextual 11 nonretaliatory reason for the discharge.’” Id. at 725-26 (quoting Wilmot v. Kaiser Aluminum & 12 Chemical Corp., 118 Wn. 2d 46, 70 (1991)). “If the employer articulates such a reason, the 13 burden shifts back to the plaintiff either to show ‘that the reason is pretextual, or by showing that 14 although the employer’s stated reason is legitimate, the [public-policy-linked conduct] was 15 nevertheless a substantial factor motivating the employer to discharge the worker.’” Id. at 726 16 (quoting Wilmot, 118 Wn. 2d at 73). 17 In plaintiff’s response to defendants’ motion for summary judgement, she alleges that 18 during the course of her employment, she “discovered that Defendant Seattle City Light had a 19 20 13 Plaintiff dedicates much of her response brief to arguing that she was not, in fact, an at will 21 employee at the time she was terminated. See Dkt. # 35 at 8-9. Defendants dispute this allegation. See 22 Dkt. # 51 at 8-9. Ultimately, the Court need not resolve this issue as plaintiff has failed to explain why her at-will status is relevant to any of her claims. The Washington State Supreme Court has held that the 23 existence of alternative remedies for wrongful discharge does not prevent a plaintiff from bringing a claim under the common law tort of wrongful discharge. See Rose v. Anderson Hay & Grain Co., 184 24 Wn. 2d 268 (2015). And plaintiff neither can nor does assert a claim that defendants violated the terms 25 of the collective bargaining agreement she claims governed her position. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“A plaintiff may not amend [their] complaint 26 through argument in a brief opposing summary judgment.”); Pickern v. Pier 1 Imps. (U.S.), Inc., 457 F.3d 963, 969 (9th Cir. 2006) (explaining that a plaintiff could not assert new grounds for her claim for 27 the first time in opposition to summary judgment, because “the complaint gave [defendants] no notice of 28 th[ose] specific factual allegations”). 1 significant issue with its meters that was reported in the DEIEN Lawsuit.” Dkt. # 35 at 16.14 2 Specifically, plaintiff “alleges that approximately 350,000 Seattle City Light customers were 3 over billed for nearly six years.” Id. Plaintiff claims that she “reported this information to her 4 superiors and to Human Resources who in turn told Plaintiff she was in a protected status as a 5 whistleblower,” id. (citing Exhibit 12), and she “filed an official whistleblower complaint in 6 April of 2021,” id.15 7 As an initial matter, plaintiff has failed to produce any evidence supporting her claim that 8 she reported her discovery to her supervisors or filed an “official whistleblower complaint.” 9 Plaintiff directs the Court to Exhibit 12, see Dkt. # 35 at 16, but Exhibit 12 is a declaration from 10 human resources representative Seini Puloka that does not discuss plaintiff’s alleged 11 12 14 “Deien v. Seattle City Light, King County Superior Court Case No. 19-2-21999-8 SEA, was a class action lawsuit filed in August 2019 by an SCL customer.” Dkt. # 18 at 24. “The Complaint alleged 13 that SCL implemented a new automated meter-reading system in approximately 2016, but that the 14 system did not read meters accurately and sometimes, did not read them at all.” Id. The Deien plaintiffs further alleged that “in anticipation of the new system, SCL laid off many meter readers, and so did not 15 have the resources to accurately read meters” and “that SCL billed customers using estimates.” Id. The case settled in September 2021. Dkt. # 19 at 111. 16 15 Plaintiff also asserts, without offering any citation to the record, that she “reported an incident 17 of witness tampering committed by defendant Britt Luzzi, who is not an attorney, whereby Plaintiff 18 witnessed the Defendant bring witnesses into a room and overheard the Defendant instructing witnesses how to testify in the DEIEN et Al [sic] case.” Dkt. # 18 at 14. Plaintiff has not offered any evidence to 19 support her claim that this “witness tampering” actually took place, or that plaintiff reported it. See Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact cannot be or is genuinely disputed must support the 20 assertion by . . . citing to particular parts of materials in the record . . . .”). Furthermore, plaintiff makes 21 no claim that her supervisors were aware of her alleged report, nor does she provide any evidence indicating that her supervisors were aware. See Dkt. # 18 at 14. Accordingly, plaintiff cannot show that 22 her alleged reporting was a “substantial factor” in her discharge, and cannot demonstrate a prima facie case. 23 Similarly, defendants note that in plaintiff’s deposition, she alleged that she had also made 24 whistleblowing reports regarding her colleagues purposefully slowing down projects, which she asserted 25 amounted to theft of federal funds, and regarding “SCL’s purported plan to teach constituents to use less electricity and then sell that excess electricity to the state of California.” Dkt. # 18 at 22-24. Plaintiff 26 does not raise these claims in her response. See Dkt. # 35. Even if plaintiff had raised these claims in her response, the Court’s conclusion would remain the same. Plaintiff has failed to provide any evidence 27 that she actually made any whistleblower reports, much less that her supervisors were aware of any 28 alleged report she made. 1 whistleblowing. See Dkt. # 36 at 94-96. Given plaintiff’s reference to her “protected status,” 2 Dkt. # 35 at 16, the Court presumes that plaintiff intended to direct it to Exhibit 21B, which 3 outlines the City’s policy of non-retaliation. See Dkt. # 36 at 152-55. Specifically, the City “does 4 not tolerate retaliation of any kind against an individual who participates in the complaint 5 process.” Id. at 154. However, this information regarding the City’s non-retaliation policy was 6 given to plaintiff as part of the packet of information provided by Sonia Johnson, an HRIU 7 investigator, following plaintiff’s complaints regarding Sharon Hunter. See Dkt. # 19 at 38-42. 8 Plaintiff has not produced any evidence indicating that her concerns about potential overbilling 9 by Seattle City Light was included in this complaint. Thus, while it appears that the City’s 10 policy operates to protect plaintiff from retaliation related to the human resources complaint she 11 filed against Sharon Hunter and others, this “protected status” has no relation to plaintiff’s 12 alleged whistleblowing activity. 13 Similarly, plaintiff directs the Court to the declaration of Ed Hill as evidence that plaintiff 14 was “retaliated against once she filed her Whistleblower Complaint.” Dkt. # 35 at 17. However, 15 Mr. Hill’s declaration discusses the HRIU investigation, describing it as focusing on plaintiff’s 16 concerns that she was “working in several job classifications different than the one she was 17 hired into.” Dkt. # 39 at 2. Nowhere in Mr. Hill’s declaration does he provide support for 18 plaintiff’s contention that she filed a complaint regarding the alleged overbilling by Seattle City 19 Light. See generally Dkt. # 39. Finally, plaintiff also directs the Court to the declaration of 20 Monica Jones. See Dkt. # 35 at 17-18. However, Ms. Jones’s declaration similarly discusses the 21 HRIU investigation into plaintiff’s discrimination claims, and does not address or provide 22 support for plaintiff’s claim that she filed a whistleblower complaint. See generally Dkt. # 38.16 23 24 25 16 Additionally, while plaintiff does not raise this argument in her response, and thus the Court need not consider it, see Fed. R. Civ. P. 56(c)(3), the Court also notes that plaintiff’s assertions that she 26 contacted the Mayor’s office in an attempt to file her whistleblower complaint are similarly unavailing. 27 Plaintiff’s only support for this contention is an “auto-generated email originating from an unmonitored email account” which confirms only that she submitted a “meeting request” to the Mayor’s Office titled 28 1 In light of the fact that plaintiff has failed to demonstrate that she reported her alleged 2 discovery, or that her supervisors were aware of her alleged whistleblower complaint at the time 3 of her termination, the Court finds that plaintiff has failed to “produce evidence that the public- 4 policy-linked conduct was a cause of the firing,” and accordingly has failed to demonstrate a 5 prima facie case for wrongful discharge. Furthermore, even if plaintiff could demonstrate a 6 prima facie case, the Court finds that defendants have articulated a legitimate nonpretextual 7 nonretaliatory reason for the discharge. As defendants note, “[i]n the months leading up to her 8 termination, plaintiff was disrespectful and unprofessional to her supervisors on multiple 9 occasions, even after being coached on adhering to workplace expectations. Plaintiff also 10 refused to perform work that her supervisors delegated to her.” Dkt. # 18 at 26. Washington 11 Courts have consistently found that “insubordination and inadequate job performance” are 12 legitimate reasons for dismissal. See Martin, 191 Wn.2d at 726. As discussed above, plaintiff 13 has failed to show that her alleged whistleblowing was a significant factor in her termination, 14 and thus cannot overcome the burden of showing that defendants’ reasons are pretextual. The 15 Court grants summary judgment to defendants on plaintiff’s wrongful discharge claim. 16 i. Motion to Compel 17 Alongside their motion for summary judgment, defendants have also filed a “Motion to 18 Compel Re. Package of Information Evidencing Plaintiff’s Whistleblowing Claims” (Dkt. # 29). 19 Specifically, defendants seek the identity of certain “federal attorneys” whom plaintiff claims 20 she sent “a package of evidence regarding her whistleblowing claim,” as well as the evidence 21 contained therein. See Dkt. # 29. 22 As background, plaintiff participated in two full days of depositions for discovery in this 23 case, taking place on May 22, 2023 and July 7, 2023. Dkt. # 27 at 1-2. On the second day of her 24 deposition, plaintiff “revealed for the first time that a package of evidence regarding her 25 whistleblowing claim is in the hands of a third party. This was not disclosed in Plaintiff’s initial 26 27 anyone in the Mayor’s office, made any sort of report, or that any report she might have made to the 28 Mayor’s office was shared with the employees responsible for her termination. 1 disclosures and was not disclosed in response to similar questioning during the first day of 2 Plaintiff’s deposition on May 22, 2023.” Id. Plaintiff asserted that she had sent a packet of 3 evidence regarding the alleged improper meter reading to “federal attorneys” who were 4 “colleagues,” and that she had deleted her own copies of the evidence. See Dkt. # 32-1 at 9-26. 5 Plaintiff was asked multiple times by defense counsel to identify these federal attorney 6 colleagues, but refused to do so in her deposition. Id. 7 Following an unsuccessful discovery conference, defendants filed the instant motion to 8 “compel Plaintiff to provide the names of the individuals who currently have the package of 9 information, and also to produce the information.” Dkt. # 29 at 1-2. Plaintiff submitted a late- 10 filed response, arguing that the Court should deny the motion to compel “[i]n light of the 11 Plaintiff’s legitimate fear for her life and the potential risks associated with disclosing certain 12 information.” Dkt. # 50 at 4. 13 Because the Court has granted summary judgment to defendants on plaintiff’s 14 whistleblowing claims, the Court denies defendants’ motion to compel as moot. 15 D. Negligent Retention and Supervision 16 Finally, in her Complaint, plaintiff asserted a claim of negligent retention and supervision 17 against defendants. See Dkt. # 1 at 14. Defendants argue that these claims should be dismissed 18 on summary judgment as plaintiff claimed in her deposition that she was the only employee who 19 was negligently supervised. See Dkt. # 18 at 26 (citing Dkt. # 19 at 64-66). Defendants also note 20 that “[t]o establish negligent supervision, the plaintiff must prove that: (1) an employee acted 21 outside the scope of his employment,” id. (citing Briggs v. Nova Servs., 135 Wn. App. 955, 966- 22 67 (2006)), and here, plaintiff “note[s] in her Complaint that the individual defendants’ actions 23 are within the scope of their employment, id. (citing Dkt. # 1 at 6). 24 Plaintiff fails to address defendants’ arguments in her response, see generally Dkt. # 35, 25 and has therefore failed to resist the motion by “set[ting] forth specific facts showing that there 26 is a genuine issue for trial.” Anderson, 477 U.S. at 256; see also John-Charles v. California, 646 27 F.3d 1243, 1247 n.4 (9th Cir. 2011) (deeming issue waived where party “failed to develop any 28 argument”); City of Arcadia v. EPA, 265 F. Supp. 2d 1142, 1154 n.16 (N.D. Cal. 2003) (“[T]he 1 implication of this lack of response is that any opposition to this argument is waived.”). 2 Accordingly, the Court grants defendants’ motion for summary judgment as to plaintiff’s 3 negligent retention and supervision claims. 4 IV. Conclusion 5 For all the foregoing reasons, defendants’ motion for summary judgment (Dkt. # 18) is 6 GRANTED. The Clerk of Court is directed to enter judgment for defendants and against 7 plaintiff. Defendants’ motion to compel (Dkt. #29), motion for leave to file a motion to dismiss 8 (Dkt. # 60), and motion to dismiss (Dkt. # 61) are DENIED AS MOOT. 9 IT IS SO ORDERED. 10 11 DATED this 5th day of October, 2023. 12 13 A 14 Robert S. Lasnik 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28