Jones v. City of Seattle

 HONORABLE RICHARD A. JONES 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 MONICA JONES, an individual, 11 Plaintiff, Case No. 2:22-cv-01668-RAJ 12 v. ORDER 13 CITY OF SEATTLE and SEATTLE CITY 14 LIGHT, 15 Defendants. 16 17 I. INTRODUCTION 18 This matter comes before the Court on Defendants City of Seattle and Seattle City 19 Light’s (“the City”) motion for summary judgment, Dkt. # 44, and motion to exclude 20 witness testimony. Dkt. # 47. Plaintiff Monica Jones (“Ms. Jones” or “Plaintiff”) opposes 21 the City’s motion, Dkt. # 44, and did not file an opposition to the City’s motion to 22 exclude. Plaintiff worked at Seattle City Light for nearly twenty years until the City let 23 Plaintiff go due to her non-compliance with the City’s COVID-19 vaccination 24 requirements. The City seeks dismissal of the entirety of Plaintiff’s employment 25 discrimination claims related to her separation from Seattle City Light. Having reviewed 26 the memoranda, declarations, exhibits, and the record herein, the Court GRANTS the 27 City’s motion for summary judgment. II. FACTUAL BACKGROUND 1 2 Seattle City Light is a department of the City of Seattle and a publicly owned 3 utility that provides electrical services to residential and business customers in the Seattle 4 area. Dkt. # 44 (Declaration of Kathryn Schultz ISO Defendants’ Motion for Summary 5 Judgment) ¶ 3. Plaintiff began working at Seattle City Light on July 3, 2022 as a 6 Customer Service Representative. Dkt. # 50 (Declaration of Monica Jones in Response to 7 Defendants’ Motion for Summary Judgment) at 2. She worked her way up to positions as 8 a Senior Customer Representative in July 2011 and a Credit Collections Supervisor in 9 March 2016. Dkt. # 46 (Declaration of Lauren Parris Watts ISO Defendants’ Motion for 10 Summary Judgment), Ex. A (“Jones Dep. 1”) at 37:4-13; Dkt. # 50 at 2. Plaintiff held her 11 position as a Credit Collections Supervisor until she was let go by the City in February 12 2022. Id., Ex. A at 37:15-16. 13 According to the City, Plaintiff, as a Credit Collections Supervisor, was 14 responsible for managing the customer service desk at Seattle City Light’s offices in 15 downtown Seattle. Dkt. # 45 ¶ 4. She supervised seven employees at City Light’s office 16 and four “Office/Maintenance Aide” employees who did not staff the customer service 17 desk. Id. ¶ 4 n. 1. Further, according to an October 2021 memorandum from the City to 18 Plaintiff, Plaintiff’s role required “in-person interaction, guidance, and collaboration with 19 her direct reports” and her in-person responsibilities included customer-facing interaction 20 and serving as part of an escalation path for customer issues and troubleshooting. Dkt. # 21 45, Ex. A. 22 Due to the COVID-19 pandemic, Washington Governor Jay Inslee declared a state 23 of emergency in February 2020, see Slidewaters LLC v. Washington State Department of 24 Labor and Industries, 4 F.4th 747, 753 (9th Cir. 2021), and issued several public health 25 and safety proclamations thereafter. Starting in March 2020, Plaintiff mostly worked 26 remotely, except for a few voluntary in-person arrivals per week. Dkt. # 50 at 2. In 27 August 2021, Seattle Mayor Jenny Durkan announced that all City employees were 1 required to be vaccinated for COVID-19 as a condition of employment by October 18. 2 Id.; Dkt. # 45, Ex. B. The City, in an email from Seattle’s People and Culture Officer 3 DaVonna Johnson, stated that there would be an exemption process for employees with 4 religious and medical reasons, and employees who request and are verified to have a 5 medical or religious exemption would be required to undergo weekly COVID-19 testing 6 and be required to distance. Id. Around October 4, 2021, Plaintiff submitted a request for 7 a religious exemption from the vaccine requirement. Dkt. # 46, Ex. B (“Jones Dep. 2”) 8 109:11-23. Plaintiff requested that she be accommodated by masking and weekly testing. 9 Dkt. # 50 at 3. 10 On October 15, 2021, ADA/Leave Coordinator Corina Matson responded to 11 Plaintiff’s request via email, explaining that the next step was to engage in the interactive 12 accommodations process. Dkt. # 45, Ex. C. An October 15, 2021 memorandum from 13 ADA/Leave Specialist Tara Ritchey to Plaintiff titled “Acknowledgement of Request for 14 Reasonable Accommodation based on Religious Exemption” stated that Plaintiff’s 15 religious exemption had been approved and that they were to begin the interactive 16 process to determine whether an effective accommodation existed that would allow her to 17 continue performing the essential functions of her job. Id., Ex. D. The memo further 18 explained that the City would look for a reasonable accommodation that would enable 19 Plaintiff to perform her job without compromising workplace safety or imposing more 20 than a minimal cost or burden on other employees or overall operations. Id. In October 21 and November, Plaintiff’s management team met to discuss Plaintiff’s role and potential 22 accommodations. Id., Ex. E. 23 On October 26, 2021, the City sent a memo to Plaintiff titled “Reasonable 24 Accommodation Unavailable for Religious Exemption.” Dkt. # 45, Ex. A. The City 25 indicated that, after evaluating Plaintiff’s request and making an individualized 26 assessment, it was unable to identify a reasonable accommodation that would not result in 27 an undue hardship. The City stated that Plaintiff’s position required onsite presence at her 1 reporting station, and, although many of her duties could be completed via telework, her 2 customer-facing interactions would include customer escalation and troubleshooting. Id. 3 at 1. Further, her position could potentially require her to report onsite for access to 4 technical resources or in support of the Credit & Collections team. Id. 5 The City stated that masking and/or periodic testing would not be an effective 6 accommodation because employees could potentially be contagious prior to symptom 7 onset or asymptomatic and unknowingly spread the virus. Id. And although masking was 8 a “key element” in the City’s COVID-19 response, the City did not find masking, on its 9 own, to be sufficient to adequately minimize the risk of spread. Id. at 2. Quoting the 10 Occupational Safety and Health Administration, the City stated that “vaccination is the 11 key element in a multi-layered approach to protect workers.” Id. Due to Plaintiff’s job 12 duties and the risk of unvaccinated individuals contracting the Delta variant and 13 spreading it to others, the City believed that it was unable to identify a reasonable 14 accommodation. Id. 15 Plaintiff met with Ms. Ritchey on November 9, 2021, and at that meeting, Plaintiff 16 and Ms. Ritchey expressed differing views on whether Plaintiff needed to appear on site 17 to complete her job responsibilities. Jones Dep. 2 at 145:4-14. Ms. Ritchey believed that 18 Plaintiff’s supervisory role could not be completed remotely, while Plaintiff believed that 19 no one was handling supervisory duties, including Plaintiff’s counterpart. Id. at 154:15- 20 155:8. On November 17, Ms. Ritchey sent a follow up email recapping her meeting with 21 Plaintiff and reiterating the reasons why the City believed it could not provide a 22 reasonable accommodation to Plaintiff. Dkt. # 45, Ex. G. The City provided Plaintiff with 23 the following options moving forward: (a) comply with the vaccine requirement by 24 providing proof of her first dose within two weeks; (b) retire, if eligible; (c) not comply 25 by voluntarily resigning; and (d) not comply by non-disciplinary separation after being 26 placed on administrative leave and provided an opportunity to have a hearing. Id. at 2. 27 The City asked Plaintiff to provide a response by December 1, 2021, and if Plaintiff made 1 no choice, she would default to option (d). Id. Plaintiff responded via email on November 2 23 and stated that she believed that the process was discriminatory, not factual, and 3 personally targeted her. Dkt. # 46, Ex. H. Plaintiff stated that she chose option (e)—to 4 discuss her objections to the process with Mayor Elect Bruce Harrell. Id. Plaintiff stated 5 that there had been no discussion amongst her management team about the need to be in 6 the office five days per week, that this expectation had not been communicated to her, 7 and that division leadership communicated that the team’s long-term goal was to continue 8 teleworking. Id. 9 On December 3, 2021, Plaintiff was placed on paid administrative leave due to 10 non-compliance with the vaccine requirement. Dkt. # 46, Ex. I. On January 26, 2022, 11 Plaintiff met with City Light’s General Manager/CEO Debra Smith, in a meeting that 12 Plaintiff described as “dry” and a “waste of time.” Jones Dep. 2 at 181:25-183:9. Plaintiff 13 states that she was not asked for any information about what she could and could not do, 14 but ultimately, “it wouldn’t have mattered what [Plaintiff] said,” because Ms. Smith had 15 already made up her mind. Id. In a February 7 letter, Ms. Smith notified Plaintiff of the 16 final decision to end Plaintiff’s employment with City Light effective that day, due to 17 non-compliance. Dkt. # 46, Ex. J. The letter provided information on appeals for union 18 represented members and civil service employees. Id. 19 Plaintiff then followed up with her Union Representative in order to file a 20 grievance. Dkt. # 51, Ex. D, E. On March 9, 2022, Plaintiff’s union filed a grievance on 21 her behalf and Plaintiff attended a “Step 2” meeting on March 28, 2022. Id. Plaintiff’s 22 union then filed a “Step 3” grievance on May 25, 2022. Id. Ultimately, both grievance 23 attempts were unsuccessful. Id. Plaintiff filed a complaint with the EEOC on August 5, 24 2022, and received a right to sue letter later that month. Dkt. # 1 at 2; Dkt. # 51 at 8. 25 Plaintiff also filed a charge alleging discrimination with the Seattle Office for Civil 26 Rights and was assigned an investigator. Dkt. # 51, Ex. F. However, there was a delay in 27 meeting with the investigator, and Plaintiff then chose to seek legal representation to fight 1 her termination by the City. Id. at 8. 2 In November 2022, Plaintiff filed suit against the City, alleging that Defendants 3 had pre-determined not to accommodate Plaintiff’s religious exemption due to bias on the 4 part of Plaintiff’s then-boss Luis Amezcua and Plaintiff’s race as an African American. 5 Dkt. # 1 at 4-5. Plaintiff further alleged that Defendants had no intention of granting 6 religious exemptions on a larger level. Id. Plaintiff brought eleven claims brought against 7 the City, which include: including failure to accommodate, disparate impact due to 8 religion, religious discrimination, and racial discrimination under the Washington Law 9 Against Discrimination (WLAD), tort claims for religious and racial discrimination, age 10 discrimination under the Age Discrimination in Employment Act (ADEA) and WLAD, 11 wage theft, and violations of the Washington constitution and Plaintiff’s right to be free 12 from arbitrary and capricious action. Dkt. # 1. In her opposition briefing, Plaintiff 13 stipulated to the dismissal of her wage theft and arbitrary and capricious action claims. 14 Dkt. # 49 at 19, 21. 15 As part of discovery, Defendants served Plaintiff with Requests for Admissions on 16 July 20, 2023. Dkt. # 46, Ex. K. Plaintiff was asked to admit or deny the following: 17 • RFA No. 5: Admit that while You were employed by Defendant City as a 18 Credit and Collections Supervisor, Your position required on-site presence 19 at your reporting station, the Seattle Municipal Tower. 20 • RFA No. 7: Admit that during the November 7, 2021 meeting with 21 Defendant City, there was discussion of the essential functions of Your 22 position, including in-person interaction with seven employees that were 23 your direct reports. 24 Id. at 3. Plaintiff’s responses were due on August 21, 2023, but not served until 25 August 29, 2023. Id., Ex. M. Emails between the parties indicate that there was a 26 misunderstanding between counsel such that Plaintiff’s counsel believed that the parties 27 agreed on a global extension of time to submit discovery responses, while Defendants 1 agreed only to an extension for Plaintiff to serve responses to Defendants’ Interrogatories 2 and Requests for Production. Id. Plaintiff argues that, pursuant to Federal Rule 36(b), all 3 matters should be considered admitted and conclusively established. Dkt. # 44 at 6-7 4 (citing Fed. R. Civ. P. 36(b)). Counsel’s correspondence reflects that the parties discussed 5 an extension to respond to Interrogatories and Requests for Production, but not Requests 6 for Admission. Dkt. # 46, Ex. L. Plaintiff did not timely respond, and in the absence of a 7 written answer or objection within 30 days after service, a matter is admitted. Fed. R. 8 Civ. P. 36(a)(3). Plaintiff did not address this matter in her opposition or seek to 9 withdraw or amend the admissions. Fed. R. Civ. P. 36(b). Therefore, the matters admitted 10 are conclusively established. Id. 11 With regard to her religious affiliation, Plaintiff identified as a Christian, without a 12 particular denomination. Jones Dep. 2 115:11-12. Plaintiff stated at her deposition that 13 she drew guidance from the Bible, which states that she should “follow no man.” Id. at 14 118:23-119:2. Further, Plaintiff stated that she believed that the vaccine is connected to 15 the “mark of the beast,” due to the way the vaccine was tested and rolled out, and the 16 varying statements of members of the medical community. Id. at 119:12-21. In her first1 17 Declaration in opposition to Defendants’ motion, Plaintiff explained that her religious 18 beliefs include her knowledge of her natural immunity and asserted that the COVID-19 19 vaccine contains fetal cell lines derived from elective abortions. Dkt. # 50 at 2. Plaintiff 20 further states that the thought of injecting herself with the vaccine causes her great 21 1 Plaintiff filed two declarations in opposition to Defendants’ motion. The first 22 declaration was filed on May 20, 2024, and a second “Amended” declaration was filed on May 24, 2024, three days after the May 21, 2024 deadline for opposition papers to be filed. Dkt. ## 23 50, 51; LCR 7(d)(4). The City requests that this Court strike Plaintiff’s amended declaration as 24 untimely. This Court could strike the amended declaration because Plaintiff failed to set forth in a praecipe why the amended declaration was not included in the original filing in accordance 25 with LCR 7(m). See Williams v. Columbia Debt Recovery, LLC, 579 F. Supp. 3d 1203, 1213 (W.D. Wash. 2022). However, the Court notes that Plaintiff’s original declaration includes no 26 related exhibits, while the amended declaration includes several exhibits. Compare Dkt. # 50 27 with Dkt. # 51. In the interest of resolving this matter on the merits, the Court will consider both declarations filed by Plaintiff. 1 discomfort and that her faith will not allow her to participate in the murder of unborn 2 children. Id. In a May 22, 2024 deposition, Plaintiff’s mother Patricia Pumphrey stated 3 that Plaintiff is currently Buddhist. Dkt. # 54, Ex. P (Pumphrey Dep.) 2:29 21- 2:30 23. 4 Plaintiff does not address her mother’s assertion that Plaintiff is Buddhist in her amended 5 declaration, which was filed after Ms. Pumphrey’s deposition, on May 24, 2024. 6 7 III. LEGAL STANDARD 8 Summary judgment is appropriate if there is no genuine dispute as to any material 9 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 10 The moving party bears the initial burden of demonstrating the absence of a genuine issue 11 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving 12 party will have the burden of proof at trial, it must affirmatively demonstrate that no 13 reasonable trier of fact could find other than for the moving party. Calderone v. United 14 States, 799 F.2d 254, 259 (6th Cir. 1986). On an issue where the nonmoving party will 15 bear the burden of proof at trial, the moving party can prevail merely by pointing out to 16 the district court that there is an absence of evidence to support the non-moving party’s 17 case. Celotex Corp., 477 U.S. at 325. If the moving party meets the initial burden, the 18 opposing party must set forth specific facts showing that there is a genuine issue of fact 19 for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 20 (1986). The court must view the evidence in the light most favorable to the nonmoving 21 party and draw all reasonable inferences in that party’s favor. Reeves v. Sanderson 22 Plumbing Prods., 530 U.S. 133, 150-51 (2000). 23 “As a general matter, the plaintiff in an employment discrimination action need 24 produce very little evidence in order to overcome an employer’s motion for summary 25 judgment.” Chuang v. Univ. of Cal. Davis, Bd. of Tr., 225 F.3d 1115, 1124 (9th Cir. 26 2000). However, the court need not, and will not, “scour the record in search of a genuine 27 issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see also, 1 White v. McDonnell Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (the court need 2 not “speculate on which portion of the record the nonmoving party relies, nor is it obliged 3 to wade through and search the entire record for some specific facts that might support 4 the nonmoving party’s claim”). The opposing party must present significant and 5 probative evidence to support its claim or defense. Intel Corp. v. Hartford Accident & 6 Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). Uncorroborated allegations and “self- 7 serving testimony” will not create a genuine issue of material fact. Villiarimo v. Aloha 8 Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); T.W. Elec. Serv. V. Pac Elec. 9 Contractors Ass’n, 809 F. 2d 626, 630 (9th Cir. 1987). 10 11 IV. ANALYSIS 12 A.) Religious Discrimination Claims (First, Second, and Third Causes of 13 Action) Plaintiff brings claims for religious discrimination under the Washington Law 14 Against Discrimination (WLAD). Dkt. # 1 at 7-8. Plaintiff alleges that Defendants failed 15 to accommodate her as required by the WLAD and that her termination violates public 16 policy precepts that prohibit employment discrimination. Id. Plaintiff further alleges that 17 Defendants’ COVID-19 vaccine requirement, although facially neutral, falls more 18 harshly upon those within protected religious classes. Id. The City seeks dismissal of 19 Plaintiff’s religious discrimination claims. 20 1.) Failure to Accommodate 21 The WLAD implies a requirement to reasonably accommodate religious practices. 22 Kumar v. Gate Gourmet Inc., 180 Wn.2d 481, 496-497, 325 P.3d 193 (2014). A plaintiff 23 establishes a prima facie claim of failure to accommodate religious practices by showing 24 that: (1) he or she had a bona fide religious belief, the practice of which conflicted with 25 employment duties; (2) he or she informed the employer of the beliefs and the conflict; 26 and (3) the employer responded by subjecting the employee to threatened or actual 27 1 discriminatory treatment. Kumar, 180 Wn.2d at 501 (citing Porter v. City of Chicago, 2 700 F.3d 944 (7th Cir. 2012) and Lawson v. Wash., 296 F.3d 799, 804 (9th Cir. 2002)). 3 Washington law uses the same burden shifting test of Title VII to determine whether an 4 employer has failed to accommodate an employee’s religious beliefs. Id. at 491 5 (“Washington courts…look to federal caselaw interpreting [Title VII, the Americans with 6 Disabilities Act, and the Age Discrimination in Employment Act] to guide our 7 interpretation of the WLAD.”) The term “religion” is defined under Title VII to include 8 “all aspects of religious observance and practice, as well as belief.” 42 U.S.C. § 2000e(j). 9 If a plaintiff establishes a prima facie case of failure to accommodate based on 10 religious discrimination, the burden shifts to the employer to “establish that it initiated 11 good faith efforts to accommodate the employee’s religious practices or that it could not 12 reasonably accommodate the employee without undue hardship.” Lawson, 296 F.3d at 13 804. An “undue hardship” results when an employer is required to bear more than a de 14 minimis cost. Kumar, 180 Wn.2d at 502. Further, an “undue hardship” may implicate 15 concerns other than those of the financial sort. Additionally, the “reasonable 16 accommodation” need not be the precise accommodation requested by the employee, 17 even if it would cause no undue hardship to the employer. Id. 18 Here, Plaintiff has failed to establish a prima facie case of failure to accommodate. 19 As to the first prong, Plaintiff fails to establish a bona fide religious belief. Although 20 Plaintiff states in her complaint and opposition that she possesses bona fide religious 21 beliefs, she fails to establish what exactly her belief system is. “[A]n employee’s 22 complaint must provide sufficient information about the nature of the employee’s beliefs 23 in order to state a claim for Title VII religious discrimination.” Bartholomew v. 24 Washington, No. 3:23-cv-05209-DGE, 2024 WL 1426308, at *4 (W.D. Wash. Mar. 26, 25 2024) (citing Blackwell v. Lehigh Valley Health Network, No. 5:22-cv-03360-JMG, 2023 26 WL 362392, at *6 (E.D. Pa. Jan. 23, 2023)). Here, Plaintiff stated that she was a 27 Christian, Jones Dep. 2 at 115:12, while her mother stated that Plaintiff was in fact 1 Buddhist. Pumphrey Dep. at 2:29 21- 2:30 23. Further, Plaintiff explained that her 2 religious beliefs “include the knowledge of natural immunity.” Dkt. # 50 at 6. However, 3 “courts have been reluctant to recognize ‘natural immunity’ beliefs as religious rather 4 than secular.” Bartholomew at *5 (collecting cases). Plaintiff’s other explanation in her 5 amended declaration that her religious belief includes “not being inoculated with fetal 6 derived cells, especially by an Emergency Use Authorization of the following drug 7 companies: Johnson & Johnson, Moderna & Pfizer Vaccinations[,]” provides no further 8 context as to her religious, as opposed to secular, beliefs. Dkt. # 51 at 3. This court need 9 not take “conclusory assertions of violations of religious beliefs at face value.” Bolden- 10 Hardge v. Office of California State Controller, 63 F.4th 1215, 1223 (9th Cir. 2023). 11 Especially here, when the testimony provided by Plaintiff and her mother is in conflict 12 and does not illuminate Plaintiff’s bona fide religious belief. Further, discrimination law 13 “does not protect medical, economic, political, or social preferences.” Kather v. Asante 14 Health System, No. 1:22-cv-01842-MC, 2023 WL 48655533, at * 3 (D. Or. July 28, 15 2023) (finding that former employees of a hospital who objected to vaccination on the 16 basis of the vaccine being developed with aborted fetal cell lines, a desire to trust in the 17 Lord over “the solutions of men,” a belief that the hospital’s actions were “blasphemy” 18 and “satanic,” and general objections to the mandate failed to state a prima facie failure- 19 to-accommodate claim). “It is quite clear [Plaintiff] had scientific and political objections 20 to the vaccine that [she has] attempted to ‘fit’ to [her] religious beliefs in order to 21 potentially qualify for a religious exemption.” Moore v. Effectual Inc., 3:23-cv-05210- 22 DGE, 2024 WL 1091689, at *9 (W.D. Wash. Mar. 13, 2024). Because of this, 23 Defendants’ request for summary judgment on Plaintiff’s failure to accommodate claim 24 is GRANTED. 25 // 26 // 27 // 1 2.) Disparate Treatment 2 To prove a prima facie case of discrimination based on disparate treatment, 3 Plaintiff must show: (1) she was a member of a protected class; (2) she was qualified for 4 her job; (3) she was subjected to an adverse employment action; and (4) similarly situated 5 employees not in their protected class received more favorable treatment. Moran v. Selig, 6 447 F.3d 748, 753 (2006); see also Marin v. King County, 194 Wn. App. 795, 808, 378 7 P.3d 203 (2016) (plaintiff must show membership in a protected class, a tangible adverse 8 employment action, that the action occurred under circumstances that raise a reasonable 9 inference of unlawful discrimination, and that plaintiff was doing satisfactory work). If 10 plaintiff makes a prima facie showing, the burden shifts to the employer to show 11 “legitimate, nondiscriminatory reasons” for its adverse employment action. Marin, 194 12 Wn. App. at 809. If the employer produces this evidence, the burden shifts again to the 13 plaintiff to show that the reasons are pretextual. Vasquez v. County of Los Angeles, 349 14 F.3d 634, 641 (9th Cir. 2003). If there is sufficient evidence of pretext, the case must go 15 to a jury. Salas v. Indep. Elec. Contractors Inc., No. 11-1748 RAJ, 2013 WL 1898249, at 16 *6 (W.D. Wash. May 7, 2013). 17 “Direct ‘smoking gun’ evidence of discriminatory animus is rare, since ‘there will 18 seldom be eyewitness testimony as to the employer’s mental process’ and ‘employers 19 infrequently announce their bad motives orally or in writing.’” Hill v. BCTI Income 20 Fund-I, 144 Wn.2d 172, 179, 23 P.3d 440 (2001) (quoting United States Postal Serv. Bd. 21 of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478 (1983) and deLile v. FMC 22 Corp., 57 Wn. App. 79, 83, 786 P.2d 839 (1990)). At the summary judgment stage, where 23 there is no evidence of discrimination, courts use the burden-shifting analysis set forth in 24 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). 25 Here, Plaintiff fails to establish the first prong of a disparate treatment claim. See 26 discussion supra Section IV(A)(1). Plaintiff also fails to establish the fourth prong of a 27 prima facie case, because she does not identify a similarly situated non-Christian who 1 was treated more favorably. Plaintiff must demonstrate that the employees receiving 2 more favorable treatment are similarly situated in all material respects; that is, they must 3 have similar jobs and display similar conduct. Weil v. Citizens Telcom Co., LLC, 922 4 F.3d 993, 1004 (9th Cir. 2019); see also Salas, 2013 WL 1898249 at *8 (the “similarly 5 situated” analysis is stringent). Plaintiff asserts that employees seeking medical 6 exemptions (as opposed to religious exemptions) were treated differently. Dkt. # 49 at 12. 7 In support of this contention, Plaintiff quotes an email from Deputy Mayor Tiffany 8 Washington (that included someone named “Ms. Thompson”) in which the Deputy 9 Mayor allegedly stated that individuals with medical exemptions were to be prioritized. 10 Id. But Plaintiff provides no citation, exhibit number, or link to this email, and the Court 11 cannot locate it in the docket. Viewing the record in the light most favorable to Plaintiff, 12 Ms. Jones fails to present evidence of a City Light employee in a customer-service facing 13 supervisory role that declined vaccination and was allowed to telework as an 14 accommodation. She alleges that a Caucasian employee named Rebecca Fitcher was 15 allowed to continue working in the building while being unvaccinated, but Plaintiff fails 16 to establish that she and Ms. Fitcher were similarly situated in all material respects, such 17 as their roles, and Plaintiff does not indicate if Ms. Fitcher is non-Christian.2 Dtk. # 51 at 18 7. Although the requisite level of proof required of a plaintiff at the summary judgment 19 stage does not rise to the level of preponderance of the evidence, “the plaintiff must still 20 produce evidence, not just pleadings or argument.” Weil, 922 F.3d at 1003 (citing Wallis 21 v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)). Defendants’ request for summary 22 judgment as to Plaintiff’s disparate treatment claim is GRANTED. 23 // 24 // 25 // 26 2 Defendants state that Ms. Fitcher was a Customer Service Representative and provided 27 a temporary telework accommodation during which she was not allowed to work in the building. Dkt. # 53 (Second Shultz Declaration) ¶ 3, 4. 1 3.) Disparate Impact 2 In her complaint, Plaintiff alleges that, although the City’s vaccination policy is 3 facially neutral, it falls more harshly upon those within protected religious classes. Dkt. # 4 1 at 8. This appears to be the only disparate impact claim within the complaint. See 5 generally Dkt. # 1. However, in her brief, Plaintiff argues that she has established the 6 existence of a facially neutral employment practice that falls more harshly on African 7 Americans. Dkt. # 49 at 16. 8 To establish a prima face case of disparate impact under the WLAD, Plaintiff must 9 prove: (1) a facially neutral employment practice, (2) falls more harshly on a protected 10 class. Oliver v. Pacific N.W. Bell Tel. Co., Inc., 106 Wn.2d 675, 679, 724 P.3d 1003 11 (1986). “Disparate impact … claims … prevent employers from adopting facially neutral 12 policies that create or perpetuate discriminatory effects.” Kumar, 180 Wn.2d at 500. 13 “Generally, the standard of proof necessary to establish a disproportionate impact upon a 14 protected class is whether the plaintiff has produced evidence sufficient to justify an 15 inference that the employment practices complained of caused a substantial 16 disproportionate exclusionary impact on the protected class, other than by mere chance,” 17 and “the primary means of proving a substantial disproportionate impact on a protected 18 class is through the use of statistical evidence.” Oliver, 106 Wn.2d at 681-82. “[T]he 19 statistical disparities must be ‘sufficiently substantial that they raise … an inference of 20 causation.” Shutt v. Sandoz Crop Protection Corp., 944 F.2d 1431, 1433 (9th Cir. 1991). 21 Here, Plaintiff produces no evidence beyond her assertion that the City has a “habit of 22 allowing similarly situated white employees to remain employed whilst refusing the 23 COVID-19 vaccine.” Dkt. #49 at 17. 24 Putting aside the discrepancy in Plaintiff’s complaint and the argument contained 25 within her opposition, Plaintiff has not raised an issue of material fact for trial. Although 26 Plaintiff has identified a facially neutral employment practice, Plaintiff provides no 27 evidence, statistical or otherwise, beyond her own statements, that the practice caused the 1 termination of employees due to their religion or race. “Ultimately, all that [Plaintiff] has 2 alleged so far is that [she] was terminated, and the Court cannot draw an inference of 3 disparity from a single data point.” Lui v. Uber Tech. Inc., 551 F. Supp. 3d 988, 991 4 (N.D. Cal. 2021). Because Plaintiff “must actually prove the discriminatory impact at 5 issue, rather than merely an inference of discriminatory impact,” Rose v. Wells Fargo & 6 Co., 902 F.2d 117, 1421 (9th Cir. 1990), Defendants’ request for summary judgment as to 7 Plaintiff’s disparate impact claim is GRANTED. 8 B.) Race and Age Discrimination Claims (Fifth, Seventh, and Eighth Causes 9 of Action) 10 Defendants seek dismissal of Plaintiff’s claims of racial and age discrimination 11 under state and federal law. Dkt. # 44 at 16. The WLAD prohibits employers from 12 refusing to hire, discharging, or discriminating against any person in the terms and 13 conditions of employment because of race and age. RCW 49.60.180. Further, the Age 14 Discrimination in Employment Act (ADEA) states that it is unlawful for an employer to 15 discharge any individual or otherwise discriminate against any individual with respect to 16 his compensation, terms, conditions, or privileges of employment, because of an 17 individual’s age. 29 U.S.C. § 623(a)(1). 18 To establish a prima facie case of disparate treatment due to race under the 19 WLAD, Plaintiff must establish that the employer “simply treats some people less 20 favorably than others because of their race.” Johnson v. Dep’t of Social and Health 21 Servs., 80 Wn. App. 212, 226, 907 P.2d 1223 (1996). The McDonnell Douglas burden 22 shifting framework applies. See Worthy v. ITT Technical Institute, No. C09-0444JLR, 23 2010 WL 1780250, at *5 (W.D. Wash. Apr. 30, 2010). Here, Plaintiff’s racial 24 discrimination claim fails because she has not presented evidence showing that she was 25 treated less favorably than similarly-situated nonprotected employees beyond simply 26 asserting that white employees were allowed to telecommute and identifying the City’s 27 “habit of allowing … white employees to remain employed whilst refusing the COVID- 1 19 vaccine.” Dkt. # 49 at 17-18. Plaintiff pointed to Ms. Fitcher as a comparator, but she 2 is not “similarly situated” to Plaintiff, because she was not a supervisor like Plaintiff. 3 Dkt. # 53 ¶ 3. 4 WLAD age discrimination and ADEA claims are similarly analyzed under the 5 McDonnell Douglas burden shifting framework, and Plaintiffs age discrimination claims 6 similarly fail. A prima facie case of age discrimination requires that plaintiffs 7 demonstrate that they were: 1) members of the protected class (at least forty years of 8 age); (2) performing their jobs satisfactorily; (3) discharged; and (4) replaced by 9 substantially younger employees with equal or inferior qualifications. Robinson v. Pierce 10 County, 539 F. Supp. 2d 1316, 1326 (W.D. Wash. 2008). Plaintiff makes no attempt to 11 establish a prima facie case of disparate treatment due to age discrimination. As to 12 Plaintiff’s hostile work environment claim, Plaintiff must show offensive contact that is 13 unwelcome, that occurs because of age, that affects the conditions of employment, and 14 that can be imputed to the employer. Id. at 1329; see also Sischo-Nownejad v. Merced 15 Community College Dist., 934 F.2d 1104 (9th Cir. 2005) (acknowledging existence of a 16 hostile work environment claim under ADEA). Plaintiff’s declarations and opposition do 17 not address the hostile work environment cause of action raised in Plaintiff’s complaint 18 beyond describing the process of seeking a religious accommodation as an “absolute 19 nightmare” and “disheartening.” Despite not being required to scour the record in search 20 of a genuine issue of material fact, this Court has done so, and has found a complete 21 absence of evidence in support of these claims. Plaintiff must “present specific, 22 significant probative evidence, not merely ‘some metaphysical doubt’” as to her claims, 23 Robinson, 539 F.Supp. at 1324 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 24 475 U.S. 574, 586, 106 S. Ct. 1348 (1986)), and has failed to do so. The City’s request 25 for summary judgment as to Plaintiff’s race and age discrimination claims is 26 GRANTED. 27 1 C.) Public Policy Claims (Fourth and Sixth Causes of Action) 2 The City argues that Plaintiff’s public policy tort claims must be dismissed. 3 Plaintiff brings public policy tort claims for religious discrimination and racial 4 discrimination based on a theory of wrongful discharge. Dkt. # 1 at 8-10. Citing Martin v. 5 Gonzaga Univ., 191 Wn.2d 712, 425 P.3d 837 (2018), the City argues that Plaintiffs 6 claims must be dismissed because the doctrine is a narrow exception to the at-will 7 employment doctrine and other applicable laws provide adequate remedies. Dkt. # 44 at 8 17-18. Plaintiff appears to argue that she was discharged for exercising a legal right, 9 asserting that the City refused to allow an African American over the age of 50 to work 10 from home while allowing similarly situated white and younger employees to work from 11 home in order to avoid taking the COVID-19 vaccine. Dkt. # 49 at 18-19. This Court 12 does not find Plaintiff’s argument persuasive. 13 “The tort for wrongful discharge in violation of public policy has generally been 14 limited to four scenarios: (1) where employees are fired for refusing to commit an illegal 15 act; (2) where employees are fired for performing a public duty or obligation, such as 16 serving jury duty; (3) where employees are fired for exercising a legal right or privilege, 17 such as filing workers’ compensation claims; and (4) where employees are fired in 18 retaliation for reporting employer misconduct, i.e., whistle-blowing.” Martin, 191 Wn.2d 19 at 723. To succeed on such a claim, a plaintiff must fully satisfy a four-factor test by 20 showing: (1) the existence of a clear public policy (the clarity element); (2) that 21 discouraging the conduct in which plaintiff engaged would jeopardize the public policy 22 (the jeopardy element): (3) that the public-policy-linked conduct caused the dismissal 23 (the causation element); (4) and that the defendant has not offered an overriding 24 justification for the dismissal (the absence of justification element). Cudney v. ALSCO, 25 Inc., 172 Wn.2d 524, 529, 259 P.3d 244 (2011) (citing Ellis v. City of Seattle, 12 Wn.2d 26 450, 459, 13 P.3d 1065 (2000)). The Washington Supreme Court has emphasized that 27 courts should “proceed cautiously” with tort of wrongful discharge cases. Id. at 530. 1 The City argues that, because other applicable laws—namely, the WLAD— 2 provide adequate remedies, Plaintiff’s claims must fail. This Court agrees. The Cudney 3 court held that the “jeopardy element” requires that the tort of wrongful discharge in 4 violation of public policy be precluded “unless the public policy is inadequately 5 promoted through other means” in order to maintain a “narrow” exception to the 6 underlying doctrine of at-will employment. 172 Wn.2d at 530. The WLAD, a law that 7 “requires liberal construction in order to accomplish the purposes of the law,” Marquis v. 8 City of Spokane, 130 Wn.2d 94, 108, 922 P.2d 43 (1996), provides adequate protections 9 against racial, religious, and age discrimination. See also Korslund v. DynCorp Tri-Cities 10 Services, Inc., 156 Wn.2d 168, 183, 125 P.3d 119 (2005) (finding that anti-discrimination 11 and retaliation remedies available under the Energy Reorganization Act were sufficient to 12 adequately protect policy such that a tort claim was unnecessary). The City’s request for 13 summary judgment as to Plaintiff’s public policy tort claims is GRANTED. 14 D.) Constitutional Claim (Tenth Cause of Action) 15 The City seeks dismissal of Plaintiff’s cause of action for violation of Article I, 16 Section 11 of the Washington State Constitution. Dkt. # 44 at 19. Plaintiff relies on 17 Article I, Sections 7 and 11 of the Washington Constitution and Governor Inslee’s 18 August 20, 2021 COVID-19 vaccination requirement proclamation, which acknowledges 19 disability and religious accommodations for workers of state agencies, in support of her 20 argument that Plaintiff asserted a clear public policy in favor of adult persons having the 21 fundamental right to control their own decisions relating to bodily autonomy and 22 rendering of their own health care. See Proclamation 21-14.13. Plaintiff further cites to 23 RCW 70.122.010, the Natural Death Act, which provides that adult persons have the 24 fundamental right to control decisions relating to their health care, including the decision 25 to have life-sustaining treatment withheld or withdrawn in the case of a terminal or 26 27 3 Available at: https://governor.wa.gov/sites/default/files/proclamations/21-14.1%20- %20COVID-19%20Vax%20Washington%20Amendment.pdf. 1 permanent unconscious condition. 2 Article I, Section 7 provides that “no person shall be disturbed in his private 3 affairs, or his home invaded without authority of law.” Wa. Const. Art. I § 7. Section 11 4 provides for “[a]bsolute freedom of conscience in all matters of religious sentiment, 5 belief and worship…” Wa. Const. Art. I § 11. Section 11 further provides that “the liberty 6 of conscience hereby secured shall not be so construed as to… justify practices 7 inconsistent with the peace and safety of the state.” Id. Here, there is no material issue of 8 fact that the City’s termination of Plaintiff due to her refusal to be vaccinated violates 9 Article I, Section 7 or 11 of the Washington Constitution. 10 Plaintiff’s reliance on McNabb v. Department of Corrections, 163 Wn.2d 393, 180 11 P.3d 1257 (2008) is inapposite. In McNabb, the Supreme Court of Washington found that 12 the State’s interest in the preservation of life, prevention of suicide, orderly 13 administration of the prison system, and maintenance of the ethical integrity of the 14 medical profession outweighed the limited right of Plaintiff McNabb, a prisoner, to refuse 15 artificial means of nutrition and hydration. Plaintiff fails to explain how McNabb 16 supports her position, especially considering that Plaintiff has not been forced to take the 17 COVID-19 vaccine. Plaintiff’s “freedom to believe remains absolute;” however, “the 18 conduct of [Plaintiff] is subject to regulation for the protection of others.” State ex rel. 19 Holcomb v. Armstrong, 39 Wn.2d 860, 864, 239 P.2d 545 (1952). The City’s request for 20 summary judgment as to Plaintiff’s constitutional claim is GRANTED. 21 E.) Motion to Exclude Witness Testimony (Dkt. # 47) 22 The City seeks an order excluding expert witness testimony from Plaintiff. Dkt. # 23 47. Plaintiff did not respond to this motion, which may be considered by the Court as an 24 admission that the motion has merit. See LCR 7(b)(2). This Court’s April 25, 2023 25 scheduling order provided that expert witnesses were to be disclosed by January 31, 2024 26 and motions challenging expert witness testimony were due by April 30, 2024. Dkt. # 19. 27 Plaintiff served the City with Rule 26 initial disclosures on May 19, 2023, indicating that 1 Plaintiff would likely retain a standard of care and damages expert. Dkt. # 48, Ex. A. 2 However, Plaintiff did not identify or disclose any expert by the deadline imposed by this 3 Court’s pre-trial scheduling order. 4 The Rules provide that “[i]f a party fails to provide information or identify a 5 witness as required by Rule 26(a), the party is not allowed to use that information or 6 witness to supply evidence… at a trial, unless the failure was substantially justified or is 7 harmless.” Fed. R. Civ. P. 37(c)(1). Because Plaintiff has not served the City with expert 8 witness disclosures by the deadline set forth in this Court’s scheduling order, the City’s 9 motion is GRANTED and Plaintiff is excluded from presenting expert witness 10 testimony. 11 12 V. CONCLUSION 13 For the foregoing reasons, this Court GRANTS the City’s motion for summary 14 judgment (Dkt. # 44) and motion to exclude expert witness testimony (Dkt. # 47). The 15 Clerk is directed to enter judgment in favor of the City and against Plaintiff. 16 DATED this 28th day of June, 2024. 17 18 A 19 20 The Honorable Richard A. Jones United States District Judge 21 22 23 24 25 26 27