Davis v. Port Angeles School District

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 KIMBERLEY J. DAVIS, CASE NO. 3:20-cv-5448 BHS-SKV 8 Plaintiff, ORDER ADOPTING REPORT AND 9 v. RECOMMENDATION 10 PORT ANGELES SCHOOL DISTRICT, et al., 11 Defendants. 12 13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable S. Kate Vaughan, United States Magistrate Judge, Dkt. 60, Plaintiff 15 Kimberly Davis’s objections to the R&R, Dkt. 61, and Defendants Port Angeles School 16 District, Amity Butler, and Patricia Reifenstahl’s objections to the R&R, Dkt. 62. 17 I. FACTUAL & PROCEDURAL BACKGROUND 18 Plaintiff is a certified special education teacher who began working for the District 19 in August 2001. Dkt. 30, ¶ 2. She brings claims against the District, her former principal, 20 Butler, and a paraprofessional assigned to Plaintiff’s classroom, Reifenstahl, for 21 violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the 22 Washington Law Against Discrimination (“WLAD”), RCW Ch. 49.60. See Dkt. 1. She 1 alleges that Defendants engaged in sex discrimination and retaliation on account of her 2 sexual orientation in violation of federal and state law.1 See id. 3 The Court reincorporates by reference the thorough factual background presented 4 in the R&R, see Dkt. 60 at 2–14, but provides an overview of the issues at hand. In 2010, 5 Plaintiff began teaching first through third grade special education at Franklin 6 Elementary School. Dkt. 1, ¶ 4.1. Butler was Plaintiff’s school principal and supervisor, 7 tasked with evaluating her performance on an annual basis. Dkt. 31, ¶ 5. Plaintiff 8 received positive evaluations graded on a four-level scale (Level 1: Unsatisfactory, Level 9 2: Basic, Level 3: Proficient, or Level 4: Distinguished) up until the 2017–2018 school 10 year. Id. ¶ 7; Dkt. 46-1 at 9–17. 11 At the beginning of the 2016–2017 school year, the District adopted the Styer- 12 Fitzgerald curriculum (“Styer”) for special education students in self-contained 13 classrooms like Plaintiff’s. Dkt. 31, ¶ 13. Styer required teachers to first complete an 14 initial assessment of each student to determine whether the curriculum was appropriate 15 for them. Dkt. 48 at 148:8–14. If so, teachers were expected to identify and work with 16 each student on individualized academic goals and collect data on those goals in Styer 17 curriculum notebooks. Dkt. 28 at 3. Defendants assert that Plaintiff failed to implement 18 Styer in the 2016–2017 school year. Id. 19 20 21 1 Plaintiff additionally asserted claims of negligent supervision and defamation but abandoned those claims. See Dkt. 53 at 3. The R&R thus only considered Plaintiff’s Title VII 22 and WLAD claims. 1 In September 2016, Butler called Plaintiff into her office to inform Plaintiff that 2 two students had reported seeing Plaintiff kissing her female partner, Tanya Pepper, in 3 the school parking lot. Dkt. 31, ¶ 12. Plaintiff alleges that Butler told her to “watch it,” 4 Dkt. 43 at 5, and Butler recalls telling Plaintiff “something to the effect of, ‘sometimes 5 our community isn’t as open-minded as we would like,’” Dkt. 31, ¶ 12. Plaintiff 6 perceived this as a warning to not be open or affectionate with her partner, Dkt. 57-1 at 7 53:25–56:7, and alleges that Butler’s treatment of her changed to hostile and 8 unprofessional following this incident, Dkt. 1, ¶ 4.10. She alleges that Butler was openly 9 hostile to her and her partner at a Christmas party that school year and that Butler began 10 withholding resources and support. Dkt. 43 at 6–8. Plaintiff further alleges that also in 11 September 2016, Butler unilaterally assigned Reifenstahl as a paraprofessional to her 12 classroom and that Reifenstahl treated her with hostility. See Dkt. 57-1 at 72:20–73:24, 13 193:13–195:25. Butler rated Plaintiff’s performance for the 2016–2017 school year as 14 Level 4: Distinguished. Dkt. 31, ¶ 15. 15 Plaintiff alleges that Butler’s discriminatory conduct continued into the 2017– 16 2018 school year. She alleges the conduct included treating her and her partner in a rude 17 and disdainful manner at school functions, continuing to withhold resources from her, 18 and excluding her from paraprofessional evaluations, among others. See Dkt. 60 at 5–6. 19 Butler, on the other hand, asserts that Plaintiff’s teaching performance deteriorated during 20 the 2017–2018 school year. She contends that Plaintiff again failed to implement the 21 Styer curriculum in her classroom and inconsistently recorded Styer data in the 22 designated notebooks, among other issues. See Dkt. 31, ¶¶ 20–21. Butler also received 1 reports from school employees regarding Plaintiff’s teaching performance, see, e.g., Dkt. 2 31, ¶ 16, and asked Plaintiff to work with a special education instructional coach for the 3 District to improve her performance, Dkt. 44, ¶ 2. At the end of the 2017–2018 school 4 year, Butler evaluated Plaintiff’s performance as Level 2: Basic. Dkt. 31, ¶ 20. Plaintiff 5 submitted a rebuttal to the evaluation but did not accuse Butler or anyone else of 6 discrimination. Dkt. 31, ¶ 23; see also Dkt. 31-1 at 21–23. 7 Prior to the 2018–2019 school year, Plaintiff reviewed a checklist with the 8 District’s special education instructional coach, who confirmed that Plaintiff had 9 implemented the requested changes and was ready for the school year. Dkt. 44, ¶ 2. 10 When the school year commenced, Plaintiff alleges that Butler repeatedly instructed her 11 to change her teaching and kept changing the requirements. Dkt. 43 at 16. Butler formally 12 observed Plaintiff’s teaching in September 2018 and December 2018 and asserts that she 13 did not see Plaintiff using the Styer curriculum in the classroom. Dkt. 31, ¶ 24; Dkt. 47 at 14 183:20–184:3. Consequently, Butler placed Plaintiff on a two-year Plan of Improvement 15 (“PIP”) in January 2019. Dkt. 31, ¶ 24. The PIP required Plaintiff to provide weekly 16 lesson plans to Butler, meet with Butler twice a month to discuss her progress, and use 17 the Styer curriculum, among others. Dkt. 31-2. In April 2019, Plaintiff met with union 18 personnel, including her union representative, to report that she was being discriminated 19 against by Butler. Dkt. 57-1 at 87:16–88:13. Her union representative subsequently spoke 20 with Butler about the complaint. Id. 21 In May 2019, a paraprofessional in Plaintiff’s classroom, Carole Copeland, 22 reported concerns about Plaintiff’s teaching to Butler. Dkt. 31, ¶ 25. Copeland alleged 1 that before spring break, the Styer notebooks disappeared from Plaintiff’s classroom, and 2 when they returned, they contained new data entries that were backdated to September 3 2018. Id. Copeland further alleged that, sometime in May 2019, Plaintiff recorded 4 behavioral data for a student the paraprofessional had been working with one-on-one 5 which was inconsistent with the behavior she had witnessed. Id. ¶ 25. When Copeland 6 told Plaintiff that she had not witnessed the recorded behavior, Plaintiff allowed her to 7 change the data. Id. 8 Following Copeland’s complaint, Butler consulted with the District’s Human 9 Resources director, Scott Harker, and removed the Styer notebooks from Plaintiff’s 10 classroom. Dkt. 1, ¶ 4.68; Dkt. 31, ¶ 26. After reviewing the notebooks, Butler noticed 11 certain data had been recorded on dates when either Plaintiff and/or the student in 12 question were not in school and suspected the data had been falsified. Dkt. 31, ¶¶ 26–27. 13 Butler reported this finding to Harker, who advised her to contact the District’s Director 14 of Special Services, Pamela Sanford. Id. Sanford reviewed the notebooks and found 15 additional data discrepancies, including data that had been recorded for student IEP goals 16 that had not yet been created and data that was unrelated to the IEP goals of the students 17 for whom it was collected. Dkt. 32, ¶ 3. 18 In June 2019, Harker requested an interview with Plaintiff to discuss her alleged 19 falsification of student records. Dkt. 30, ¶ 4. Butler, Sanford, and Plaintiff’s union 20 representative were also present at the interview. Id. During the interview, Plaintiff 21 admitted to falsifying a student’s IEP by documenting that she had contacted the parent 22 about an amendment to the IEP when she had not. Dkt. 31, ¶ 27. When asked about the 1 data discrepancies in the Styer notebooks, Plaintiff could not explain why the dates were 2 inaccurate and indicated that she must have recorded the dates in error. Id. She likewise 3 could not explain the discrepancies with the IEP goals. Dkt. 32-1 at 14. 4 On June 13, 2019, Harker sent Butler a letter to deliver to Plaintiff notifying her 5 that the District was placing her on administrative leave pending an investigation into her 6 alleged falsification of student records. Dkt. 30, ¶ 5. Harker also asked Sanford to review 7 and investigate the allegations against Plaintiff, including Copeland’s complaint and the 8 concerns regarding the special education files for Plaintiff’s students. Id. Butler then 9 evaluated Plaintiff’s job performance as Level 1: Unsatisfactory. Dkt. 31, ¶ 28; see also 10 Dkt. 31-2 at 7–11. In a rebuttal to her evaluation, Plaintiff attributed her low rating to 11 discrimination by Butler. Dkt. 31, ¶ 28; see also Dkt. 31-2 at 13–16. Butler left the Port 12 Angeles School District shortly thereafter to start a new job with the North Shore School 13 District on July 1, 2019. Dkt. 31, ¶ 28. 14 On September 6, 2019, Plaintiff filed a formal complaint with the District, alleging 15 that Butler, Reifenstahl, the District’s special education instructional coach, and another 16 paraprofessional had discriminated against her on the basis of her sexual orientation. Dkt. 17 30, ¶ 6. On September 9, 2019, Sanford produced a draft report detailing the findings of 18 her investigation into Plaintiff, which highlighted several additional data discrepancies. 19 Id. ¶ 7. On September 13, 2019, Harker met with Plaintiff and her partner to discuss her 20 complaint with the District. Id. ¶ 6. He also contacted the District’s legal counsel, who 21 arranged to hire an outside investigator to investigate Plaintiff’s claims. Id. Plaintiff then 22 filed a charge of discrimination with the Seattle office of the Equal Employment 1 Opportunity Commission (“EEOC”) on September 19, 2019. Dkt. 1, ¶ 4.78. On October 2 8, 2019, the District received a Notice of Charge of Discrimination from the EEOC. Dkt. 3 30, ¶ 8. 4 Sanford completed her final report on October 14, 2019. Dkt. 32, ¶ 9. The final 5 report concluded that Plaintiff had falsified student records on multiple occasions and that 6 she had committed professional ethics violations. Id.; Dkt. 32-1 at 16. Sanford submitted 7 her final report to Harker and the District’s Superintendent, Martin Brewer. Dkt. 32, ¶ 9. 8 Brewer determined that he had sufficiently reliable information to conclude that Plaintiff 9 had falsified student records. Dkt. 29, ¶ 7. Further, because he believed that Plaintiff had 10 committed acts of unprofessional conduct by falsifying student records in violation of 11 Washington law, Brewer referred charges against Plaintiff to the Office of the 12 Superintendent of Public Instruction and the Superintendent’s Office of Professional 13 Practices (“OPP”). Id ¶ 8. Brewer then terminated Plaintiff’s employment with the 14 District on February 18, 2020. Id. ¶ 11. 15 In May 2020, OPP found insufficient evidence to conclude that Plaintiff had 16 violated the code of professional conduct and dismissed the charges against her. Id. ¶ 13; 17 see also Dkt. 29-1 at 8–9. OPP based its finding in part on the fact that the data sheets 18 Plaintiff allegedly falsified were not official IEP documents and thus not student records. 19 Dkt. 29-1 at 9. 20 Plaintiff commenced this lawsuit against the District, Butler, and Reifenstahl in 21 May 2020. Dkt. 1. After Plaintiff filed suit, Harker received a number of job reference 22 emails from other Washington school districts asking questions about Plaintiff’s daily 1 work habits and asking whether he would rehire Plaintiff. Dkt. 30, ¶ 12. He asserts that 2 he chose not to respond because he could not answer substantive questions about her 3 teaching and believed he would compromise her chances of getting a job if he answered 4 honestly. Id. ¶ 13. Harker also received phone calls from two school districts asking if he 5 would rehire Plaintiff, and he responded that he would not. Id. ¶ 14. 6 Defendants moved for summary judgment to dismiss all of Plaintiff’s claims, Dkt. 7 28, and Plaintiff moved for partial summary judgment to dismiss all of Defendants’ 8 affirmative defenses, Dkt. 35. Judge Vaughan issued the instant R&R, recommending 9 that the Court grant in part and deny in part Defendants’ motion. Dkt. 60. The R&R 10 recommends that Plaintiff’s hostile work environment and disparate treatment claims 11 under Title VII and WLAD be dismissed with prejudice, as well as Plaintiff’s Title VII 12 and WLAD retaliation claim predicated on her termination, the District’s referral of 13 charges against her to OPP, the District’s refusal to give her job references, and Butler’s 14 final negative performance evaluation. Id. The R&R concluded that Plaintiff should only 15 be permitted to maintain her Title VII and WLAD retaliation claims predicated on the 16 District’s dissemination of negative job references.2 Id. The R&R also recommends that 17 the Court deny Plaintiff’s motion for partial summary judgment on Defendants’ 18 affirmative defenses. Id. 19 20 21 2 The Court dismissed Reifenstahl as a party on May 25, 2021, Dkt. 39, and the R&R recommends dismissing Butler as a party because Plaintiff’s only remaining claim does not 22 implicate Butler, see Dkt. 60 at 43–44. 1 The parties both object to the R&R. See Dkts. 61, 62. Plaintiff objects to the 2 recommendations that her discrimination claim should be dismissed with prejudice and 3 that her retaliation claim should be narrowed. Dkt. 61. Defendants object to the 4 recommendation to deny their motion for summary judgment on Plaintiff’s Title VII and 5 WLAD retaliation claims predicated on the District’s dissemination of negative job 6 references. Dkt. 62. 7 II. DISCUSSION 8 The district judge must determine de novo any part of the magistrate judge’s 9 disposition that has been properly objected to. The district judge may accept, reject, or 10 modify the recommended disposition; receive further evidence; or return the matter to the 11 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 12 A. Discrimination Claims 13 Both Title VII and WLAD prohibit discharge or discrimination in the terms or 14 conditions of employment because of sexual orientation. 42 U.S.C. § 2000e-2(a)(1); 15 RCW 49.60.030(1); see also Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754 (2020). 16 This prohibition gives rise to two types of discrimination claims: hostile work 17 environment and disparate treatment. Defendants construed Plaintiff’s complaint to bring 18 both type of claims, see Dkt. 28 at 7–17, and the R&R recommends that summary 19 judgment be granted for both claims, see Dkt. 60 at 16–20 (hostile work environment), 20 20–36 (disparate treatment). 21 Plaintiff appears to only object to the R&R’s recommendation to grant summary 22 judgment on her Title VII and WLAD disparate treatment claims, though she does not 1 explicitly state as much. See Dkt. 61 at 2–10. To establish a prima facie disparate 2 treatment claim, a plaintiff “must show that [her] employer simply treats some people 3 less favorably than others because of their protected status.” Alonso v. Qwest Commc’ns 4 Co., 178 Wn. App. 734, 743 (2013) (citing Johnson v. Dep’t of Soc. & Health Servs., 80 5 Wn. App. 212, 226 (1996)). Under the McDonnell Douglas standard, a plaintiff must first 6 offer proof that: (1) she belongs to a class of persons protected by Title VII and WLAD; 7 (2) she performed her job satisfactorily; (3) she suffered an adverse employment action; 8 and (4) her employer treated her differently than a similarly situated employee who does 9 not belong to the same protected class. Cornwell v. Electra Cent. Credit Union, 439 F.3d 10 1018, 1028 (9th Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 11 (1973)); see also Scrivner v. Clark Coll., 181 Wn.2d 439, 445 (2014) (en banc) (“Where 12 a plaintiff lacks direct evidence, Washington courts use the burden-shifting analysis 13 articulated in McDonnell Douglas . . . to determine the proper order and nature of proof 14 for summary judgment.” (internal citations omitted)). 15 “Once a prima facie case has been made, the burden of production shifts to the 16 defendant, who must offer evidence that the adverse action was taken for other than 17 impermissibly discriminatory reasons.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th 18 Cir. 1994). If the defendant satisfies this burden, the presumption of unlawful 19 discrimination “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 20 U.S. 502, 510–11 (1993). The plaintiff must then “demonstrate that the employer’s 21 alleged reason for the adverse employment decision is a pretext for another motive which 22 is discriminatory.” Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir. 1985). 1 Plaintiff’s objections misinterpret this standard. For example, she takes issue with 2 the fact that the R&R “require[d] that Plaintiff challenge the District’s state of mind 3 regarding its ‘belief’ that Plaintiff falsified student records” while the District “is not 4 required to establish Plaintiff’s state of mind.” Dkt. 61 at 4. The McDonell Douglas 5 standard shifts the burden between the employee and the employer; the employer- 6 defendant must only “articulate a legitimate nondiscriminatory reason for its employment 7 decision.” Lowe, 775 F.2d at 1005. The burden then shifts back to the employee-plaintiff 8 to demonstrate pretext. Id. It is Plaintiff’s burden to provide evidence from which a 9 reasonable factfinder could find pretext at the summary judgment stage, despite her 10 arguments otherwise. See Dkt. 61 at 4 n.1. A genuine dispute over a material fact exists if 11 there is sufficient evidence supporting the claimed factual dispute, requiring a judge or 12 jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 13 U.S. 242, 253 (1986). But the moving party is entitled to judgment as a matter of law 14 when the nonmoving party fails to make a sufficient showing on an essential element of a 15 claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. 16 Catrett, 477 U.S. 317, 323 (1986). 17 Turning to Plaintiff’s objections regarding pretext with this proper standard in 18 mind, the Court agrees with the R&R’s thorough analysis that Plaintiff failed to establish 19 pretext for her disparate treatment claim. See Dkt. 60 at 24–36. Her objections are 20 essentially based on the same arguments previously raised in response to Defendants’ 21 motion for summary judgment and fail to explain how the R&R erred. For example, 22 Plaintiff argues that her evidence demonstrates that the District’s position for her 1 termination (i.e., that she falsified student records) was pretext because the data sheets 2 were not student records, supported by OPP’s dismissal of the charge against her. Dkt. 61 3 at 3. But the R&R considered this exact argument in discussing whether Defendants’ 4 legitimate nondiscriminatory reason for her termination is pretext. See Dkt. 60 at 25–27. 5 Objections to a R&R are not a vehicle to relitigate the same arguments carefully 6 considered and rejected by the magistrate judge. See, e.g., Fix v. Hartford Life & 7 Accident Ins. Co., CV 16–41–M–DLC–JCL, 2017 WL 2721168, at *1 (D. Mont. June 23, 8 2017) (collecting cases). 9 The Court thus agrees with the R&R that Plaintiff has failed to show pretext by 10 demonstrating that Defendants’ proffered reason for her termination is unworthy of 11 credence or by demonstrating that a discriminatory reason more likely motivated her 12 termination. Plaintiff’s arguments in response to the motion for summary judgment and 13 her objections do not provide non-conclusory evidence that the District’s reasoning for 14 her termination is pretext for another discriminatory motive. The R&R is therefore 15 adopted as to this issue. 16 B. Retaliation Claims 17 To establish a prima facie claim of retaliation, a plaintiff must prove that (1) the 18 plaintiff engaged in a protected activity, (2) the plaintiff suffered an adverse employment 19 action, and (3) there was a causal link between the plaintiff’s protected activity and the 20 adverse employment action. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 21 (9th Cir. 2002). An adverse employment action is defined broadly, as any action 22 1 “reasonably likely to deter employees from engaging in protected activity.’” Ray v. 2 Henderson, 217 F.3d 1234, 1237 (9th Cir. 2000). 3 “Once a plaintiff has made the threshold prima facie showing, the defendant must 4 articulate a legitimate, non-retaliatory reason for the challenged action.” Emeldi v. Univ. 5 of Ore., 673 F.3d 1218, 1224 (9th Cir. 2012) (citing Davis v. Team Elec. Co., 520 F.3d 6 1080, 1089 (9th Cir. 2008)). “If the defendant does so, the plaintiff must then ‘show that 7 the reason is pretextual either directly by persuading the court that a discriminatory 8 reason more likely motivated the employer or indirectly by showing that the employer’s 9 proffered explanation is unworthy of credence.’” Id. (quoting Davis, 520 F.3d at 1089). 10 “Circumstantial evidence of pretext must be specific and substantial in order to survive 11 summary judgment.” Bergene v. Salt River Project Agric. Improvement & Power Dist., 12 272 F.3d 1136, 1142 (9th Cir. 2001). 13 Plaintiff objects to the R&R’s recommendation to limit her Title VII and WLAD 14 retaliation claims. Dkt. 61. Defendants’ objections are inverse; they object to the 15 recommendation to deny their motion as to Plaintiff’s retaliation claim predicated on the 16 District’s dissemination of negative job references. Dkt. 62. 17 1. Plaintiff’s Objections 18 Plaintiff objects to the R&R’s recommendation that her Title VII and WLAD 19 retaliation claims be limited only to the District’s dissemination of negative job 20 references. Dkt. 61 at 10–13. But her objections fail to explain how the R&R specifically 21 erred. A proper objection requires specific written objections to the findings and 22 recommendations in the R&R. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 1 Cir. 2003) (en banc). “Courts are not obligated to review vague or generalized objections 2 to an R&R; a petitioner must provide specific written objections.” Ybarra v. Martel, No. 3 09cv1188-LAB (AJB), 2011 WL 613380, at *1 (S.D. Cal. Feb. 11, 2011). 4 It appears that Plaintiff objects to the R&R’s determination that she satisfied her 5 prima facie burden as to the first two elements of her retaliation claim by alleging that she 6 was terminated, referred to OPP, and given negative job references. Though not explicitly 7 stated, Plaintiff asserts that Butler’s 2019 final performance review, being placed on 8 administrative leave, being terminated, and the District’s refusal to provide any form of 9 job reference all amount to adverse employment actions because these actions would 10 likely reasonably deter employees from engaging in protected activity. 11 Plaintiff raises this argument for the first time in her objections, and Defendants 12 argue that her objections should be reviewed under the clear error standard. Dkt. 66. The 13 Court has discretion to consider new arguments raised for the time in objections to an 14 R&R. See Brown v. Roe, 279 F.3d 742, 745–46 (9th Cir. 2002) (rejecting the Fourth 15 Circuit’s holding that a district court must consider new arguments raised for the first 16 time in an objection to a magistrate judge’s R&R); United States v. Howell, 231 F.3d 17 615, 622 (9th Cir. 2000) (district courts have discretion to consider new evidence raised 18 for the first time in an objection to a magistrate judge’s R&R); Olmos v. Ryan, No. CV- 19 11-00344-PHX-GMS, 2013 WL 3199831, at *8 (D. Ariz. June 24, 2013) (“Generally, a 20 district court need not consider new arguments raised for the first time in objections to an 21 R & R.”). 22 1 The Court will consider these new arguments here, but they do not change the 2 outcome. Plaintiff’s objections do not explain how Butler’s 2019 final performance 3 review, being placed on administrative leave, being terminated, or the District’s refusal to 4 provide any form of job reference would reasonably deter an employee from engaging in 5 protected activity. Rather, her objections are conclusory, arguing that Butler’s 2019 6 evaluation was “retaliatory on its face.” Dkt. 61 at 11. Merely asserting that whether the 7 actions she challenges constitute materially adverse actions is for the jury to decide does 8 not create a dispute of fact. A nonmoving party must present specific, significant 9 probative evidence, not simply “some metaphysical doubt.” Matsushita Elec. Indus. Co. 10 v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Plaintiff has failed to meet her burden 11 here, and summary judgment on this issue is appropriate. 12 2. Defendants’ Objections 13 Defendants, on the other hand, argue that Plaintiff has not established the prima 14 facie elements of a retaliation claim predicated upon the District’s dissemination of 15 negative job references and that the R&R erred in disregarding their affirmative defense 16 under RCW 4.24.730.3 Dkt. 62. 17 First, Defendants argue that the R&R erred in concluding that there is sufficient 18 evidence of pretext. The Court agrees with the R&R. Harker testified that he received 19 phone calls from two school districts asking him if the District would rehire Plaintiff, to 20 21 3 Plaintiff’s response to Defendants’ objections raises new arguments regarding her discrimination claim and her retaliation claim. The Court will only consider her arguments 22 properly raised in her own objections. 1 which he responded that it would not. Harker also testified that one of the reasons he 2 would not rehire Plaintiff was because she had filed the instant lawsuit. See Dkt. 50-1 at 3 21:20–25:16. While the District has articulated a legitimate, non-discriminatory reason 4 for the negative job references (i.e., that Plaintiff falsified student records), Harker 5 seemingly conceded to retaliating against Plaintiff because she engaged in protected 6 activity. The District’s proffered reason for the negative job references is arguably 7 unworthy of credence because of Harker’s testimony. The R&R correctly determined that 8 there is a question of fact as to whether the District’s nonretaliatory reason for Plaintiff’s 9 references is a pretext. 10 Next, Defendants object to the R&R’s conclusion that Plaintiff had established 11 causation for her narrowed retaliation claim. To establish causation, a plaintiff must 12 “present evidence sufficient to raise the inference that her protected activity was the 13 likely reason for the adverse action.” Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th 14 Cir. 1982) (internal citations omitted). Defendants argue that there is no evidence that 15 Harker actually stated to the callers that the reason the District would not rehire Plaintiff 16 is because she is suing the District. But Defendants do not provide any authority to 17 support the argument that the offending actor’s retaliation must be overt or direct. Rather, 18 Harker’s testimony that he would not rehire Plaintiff because she filed this lawsuit 19 supports an inference that Plaintiff’s protected activity was the likely reason for the 20 adverse action. The Court thus agrees with the R&R that Plaintiff established a prima 21 facie case of retaliation predicated upon the District’s dissemination of negative job 22 references. 1 Finally, Defendants argue that the R&R erred in disregarding the affirmative 2 defense under RCW 4.24.730. Defendants are correct that the R&R failed to consider this 3 argument, and the Court will consider it for the first time here. RCW 4.24.730 provides 4 that: 5 An employer who discloses information about a former or current employee to a prospective employer, or employment agency as defined by 6 RCW 49.60.040, at the specific request of that individual employer or employment agency, is presumed to be acting in good faith and is immune 7 from civil and criminal liability for such disclosure or its consequences if the disclosed information relates to: (a) The employee’s ability to perform 8 his or her job; (b) the diligence, skill, or reliability with which the employee carried out the duties of his or her job; or (c) any illegal or wrongful act 9 committed by the employee when related to the duties of his or her job. 10 RCW 4.24.730(1). The presumption of good faith established under this statute “may 11 only be rebutted upon a showing by clear and convincing evidence that the information 12 disclosed by the employer was knowingly false, deliberately misleading, or made with 13 reckless disregard for the truth.” RCW 4.24.730(3). 14 It is not clear to the Court that this affirmative defense is applicable here because 15 Defendants have not shown that the District (or Harker) ever disclosed information about 16 Plaintiff. Harker declares that he received phone calls from two school districts asking if 17 the district would rehire Plaintiff, and he responded that it would not. Dkt. 30, ¶ 14. 18 Based on the evidence presented in Defendants’ motion for summary judgment, the Court 19 cannot conclude that RCW 4.24.730 is applicable to Plaintiff’s retaliation claim, though 20 Defendants will not be precluded from asserting this defense at trial. 21 In conclusion, neither of the parties’ arguments alter the Court’s conclusion on 22 Plaintiff’s retaliation claim. The R&R is therefore adopted on these issues. 1 C. ORDER 2 The Court having considered the R&R, Plaintiff’s objections, Defendants’ 3 objections, and the remaining record, does hereby find and order as follows: 4 (1) The R&R is ADOPTED; 5 (2) Defendants’ motion for summary judgment, Dkt. 28, is GRANTED in 6 part and DENIED in part; 7 (3) Plaintiff’s motion for partial summary judgment, Dkt. 35, is DENIED; 8 (4) The Clerk shall terminate Defendants Amity Butler and Patricia Reifenstahl 9 as parties; and 10 (5) The referral to Judge Vaughan is terminated, and the parties shall submit a 11 joint status report no later than March 28, 2022 regarding trial length and 12 availability. 13 Dated this 1st day of March, 2022. A 14 15 BENJAMIN H. SETTLE 16 United States District Judge 17 18 19 20 21 22