Opinion
C07-1022Z.
June 26, 2008
ORDER
THIS MATTER comes before the Court on defendants City of Seattle's and Jorge Carrasco's respective motions for summary judgment. Having reviewed all papers filed in support of and in opposition to the motions, and having considered the oral arguments of counsel, the Court does hereby ORDER:
(1) The City of Seattle's motion for summary judgment, docket no. 57, is GRANTED; (2) Jorge Carrasco's motion for summary judgment, docket no. 56, is GRANTED; and (3) The Clerk is directed to enter JUDGMENT in favor of the City of Seattle and Jorge Carrasco and to send a copy of this Order to all counsel of record.Introduction
The Court concludes that trial in this matter would be totally useless. See Davis v. W. One Auto. Group 140 Wn. App. 449, 461, 166 P.3d 807 (2007) (the "object and function of the summary judgment procedure is to avoid a useless trial"). Nothing would be gained by seating a jury to hear testimony that fails to establish a prima facie case of disparate treatment, retaliation, or hostile work environment.This case is related to the companion case entitled Davis v. City of Seattle, Case No. C06-1659Z, in which the Court previously granted summary judgment in favor of defendants City of Seattle and Jorge Carrasco. As in the companion case, plaintiff's submissions here in opposition to the pending motions for summary judgment are voluminous. And, as in the companion case, despite their bulk, plaintiff's materials here lack the specificity needed to survive a motion for summary judgment. Indeed, the filings in this case are more haphazard and lacking in detail than in the companion case. In this matter, plaintiff's counsel has confusingly filed three declarations of his own, containing a total of 1,622 pages of exhibits, which are duplicatively paginated and which plaintiff has often inadequately cited merely by an "A" followed by a page number. See Sheridan First Decl. (docket nos. 130-133) (containing appendix pages 1-975); Sheridan Second Decl. (docket no. 134) (containing appendix pages 1-536); Sheridan Third Decl. (docket no. 135) (containing appendix pages 1-111). Meanwhile, plaintiff's own declaration references exhibits that were never attached. See Richards Decl. (docket no. 143). Moreover, plaintiff's brief is riddled with unclear or incomplete citations to the record, as well as citations to nonexistent evidence. See, e.g., Plaintiff's Response at 13-14 (docket no. 138-2) (citing "Kefgen at" certain pages, presumably meaning the deposition testimony of Mr. Kefgen, which was not included in plaintiff's original submissions, and which was not made part of the record until over a month after defendants filed their reply briefs in support of their respective motions for summary judgment).
In his declaration, plaintiff appears to be describing exhibits that are appended to and identified in plaintiff's counsel's first declaration; however, plaintiff's declaration inappropriately attempts to provide the foundation for the missing documents.
Finally, just like in the companion case, plaintiff relies primarily upon inadmissible hearsay, innuendo, and shear speculation. Plaintiff offers no statistical analysis on which to base his claim that he has been treated less favorably than those outside his protected class, and he does not draw the requisite link between his sexual orientation or protected activities and the decisions made by Seattle City Light and Jorge Carrasco. In sum, notwithstanding the yet again mountainous amount of materials, the majority of which plaintiff does not cite or justify including in the record, plaintiff fails to identify any genuine issue of material fact that would preclude summary judgment or necessitate a trial.
As the Ninth Circuit has explicitly held, counsel bear an obligation to provide in their briefs adequate references to the evidence upon which they rely. Carmen v. San Francisco Unified Sch. Dist. , 237 F.3d 1026 (9th Cir. 2001). The Court is not required to independently sift through all of the exhibits attached to the various affidavits or declarations submitted in opposition to a summary judgment motion or to scour the record looking for genuine issues of material fact. Id. If an attorney representing a party resisting summary judgment has not sufficiently cited in the response brief the critical evidence demonstrating a need for trial, the attorney cannot otherwise accomplish the task by merely heaping reams of paper upon the Court. Nevertheless, the Court independently, unaided by plaintiff's counsel, has climbed the mountain created by plaintiff, has reviewed all of the materials submitted by plaintiff, and has found no admissible evidence that would raise any triable issue of fact.
Due to the "sloppy and haphazard format" of plaintiff's response that resulted in "literally days of needless review" by defendants' attorneys, the City of Seattle seeks sanctions. Reply at 16-17 (docket no. 153). Although plaintiff's poor presentation more than justifies the City of Seattle's request, the Court declines to award sanctions.
Background A. Plaintiff's Employment History
Plaintiff Ed Richards is a homosexual man who works for Seattle City Light, an electric utility owned by the City of Seattle. In this lawsuit, he alleges disparate treatment on the basis of sexual orientation, hostile work environment, and retaliation under both state and municipal law. See Second Amended Complaint (docket no. 192). He also asserts claims under 42 U.S.C. § 1983. Id. Plaintiff was hired by Seattle City Light in 1998 as a Generation Apprentice. Richards Decl. at ¶ 3 (docket no. 143). Plaintiff first worked at the Cedar Falls/Tolt site, but was transferred approximately three months later to the South Substation in Seattle. Id. at ¶¶ 3 5. At some point during plaintiff's apprenticeship, he worked at the North Substation under the supervision of Mike Wright. Id. at ¶ 9. On an unspecified date, Mr. Wright indicated to plaintiff that he believed men and women should have traditional roles and asked whether plaintiff or his partner "was the man." Id.
Plaintiff complains that, while an apprentice at the Cedar Falls/Tolt site, he was subjected to discrimination with respect to reimbursement for mileage and commuting time. He expresses discontent about needing to involve the union before receiving reimbursement, but he does not make any claim for unpaid wages or business expenses.
Throughout plaintiff's apprenticeship, for unexplained reasons, his classmates called him "Special Ed." Id. at ¶ 8; see Richards Dep. at 22:2-12, Exh. F to Wollett Decl. (docket no. 63) (plaintiff never inquired why his classmates nicknamed him "Special Ed," and plaintiff cannot identify any unfair treatment by his classmates that was due to his sexual orientation). During his fourth apprentice year, an instructor inadvertently produced laughter from the students by stating to a visitor during class that he had to get the homework ready because "there is a ferry leaving soon." Richards Decl. at ¶ 10; see Richards Dep. at 95:25-97:2, Exh. F to Wollett Decl. Plaintiff speculates that his classmates laughed because they interpreted the comment to mean that he was a "fairy" who was "leaving soon," but plaintiff concedes that the instructor did not have any derogatory intent. Richards Decl. at ¶ 10; Richards Dep. at 96:24-97:1, Exh. F to Wollett Decl. At yet another undetermined date, while working as an apprentice in the Transformer Shop, plaintiff was asked by a journeyman whether he worried about being infected with the human immunodeficiency virus, which causes acquired immune deficiency syndrome ("AIDS"). Richards Decl. at ¶ 11. After plaintiff responded that he had no more reason to worry about infection from his partner than the journeyman did from his wife, the journeyman spoke to plaintiff only when required. Id.
In 2002, plaintiff completed the four-year apprenticeship program. See id. at ¶¶ 12-13. He worked at the Duwamish Substation while awaiting permanent assignment. Id. at ¶ 12. According to plaintiff, apprentices are permitted to pick their assignments in order of their ranking; plaintiff was ranked third in his class. Id. Although unclear from his vaguely worded declaration, plaintiff apparently expressed a desire to work at the Massachusetts Street Substation, but he was asked personally by Paula Rose to accept an assignment at the South Substation. Id. at ¶¶ 12 13. Plaintiff believes that Ms. Rose made the request because the lower ranked apprentices had indicated an unwillingness to work at the South Substation due to the presence there of Heather Talbot. Id. at ¶ 13. Ms. Talbot was known for displaying "unstable and emotional behavior" toward her fellow crew members, Sheridan First Decl. at 262 (docket no. 130), and plaintiff does not attribute any discriminatory animus to the reluctance of other apprentices to work with Ms. Talbot. Indeed, plaintiff himself felt "relief" when Ms. Talbot subsequently left the South Substation crew and he no longer had to be "on guard as to what would cause Ms. Talbot's angry episodes." Richards Decl. at ¶ 15. In his declaration, plaintiff recites that a lower ranked classmate received the Massachusetts Street Substation assignment, but he does not indicate what consequence might have resulted had he not agreed to the South Substation posting or how such employment action was related to his sexual orientation.
Although plaintiff alleges that the South Substation personnel were collectively known as the "Gay Crew," see Richards Decl. at ¶ 13, plaintiff offers no evidence to support his assertion that homosexual employees were "quarantined," see id. at ¶ 85, at the South Substation. Indeed, plaintiff offers no evidence that former South Substation crew members Heather Talbot, Rick Marino, and Karl Horne are homosexual, and he provides no specific information, i.e., name, job title, sexual orientation, assignment dates, etc., regarding other workers on his crew at various points in time. Plaintiff asserts that a recently hired employee, Aaren Thompson, is homosexual and was assigned to the South Substation, Richards Decl. at ¶ 45, but he does not indicate how many other homosexual employees were contemporaneously hired or where they were assigned, and he does not state whether any heterosexual employees are currently on his crew. Moreover, plaintiff concedes that, because he was "treated very well" at the South Substation, he never applied to transfer to another crew through the bidding process under the applicable collective bargaining agreement. See Richards Dep. at 83:4-19, Sheridan Second Decl. at 484 (docket no. 134).
In the fall of 2002, plaintiff began working on a crew headed by Wanda Davis. See id. at ¶ 14. In April 2004, plaintiff was scheduled to temporarily assume Ms. Davis's duties as crew chief while she was on vacation. Id. at ¶ 16; see also Sheridan First Decl. at 263 (docket no. 130). In conjunction with Ms. Davis, plaintiff conducted an expectations meeting at the Shoreline Substation with Karl Horne in advance of Mr. Horne's anticipated rotation to the South Substation. Richards Decl. at ¶ 16. Shortly thereafter, Mr. Horne accused Ms. Davis of discrimination. See Report by Kathleen O'Hanlon, Sheridan First Decl. at 257-74 (docket no. 130). After an investigation, Ms. Davis was exonerated as to the discrimination claim, but was found in violation of workplace expectations. See id. Ms. Davis was subsequently suspended from work for two days; plaintiff, however, was not subject to any investigation or any disciplinary action. See Sheridan First Decl. at 834-74 (docket no. 133-6).
While the internal complaint filed by Karl Horne against Wanda Davis was under investigation, Bill Ivie became the Acting Stations Constructor and Maintenance Supervisor, a position he held from November 2004 until July 2006, when he retired from Seattle City Light. Richards Decl. at ¶ 21; Sheridan First Decl. at 285 (docket no. 130). Although plaintiff complains that Mr. Ivie had "a nasty temper," Richards Decl. at ¶ 21, he makes no contention that Mr. Ivie's poor management style stemmed from animus toward homosexuals. Indeed, plaintiff has previously indicated that "Mr. Ivie treated him pretty well" and that they "got along well, primarily because they had both been in the Navy." Andrade Decl. at ¶ 8 (docket no. 62). Moreover, plaintiff has recently withdrawn his claim that Mr. Ivie discriminated on the basis of sexual orientation in allocating overtime hours. See First Amended Complaint at ¶¶ 2.28, 2.30, and 2.55 (docket no. 148); compare Second Amended Complaint (docket no. 192). Such allegation ran contrary to the statistical evidence concerning plaintiff's overtime and out-of-class earnings as compared with his peers during the years Mr. Ivie held the supervisory position at issue. See Exhs. B C to Zimmerman Decl. (docket no. 61). Thus, although Mr. Ivie apparently did not communicate well, yelling at and displaying angry behavior toward men and women alike, Sheridan First Decl. at 291-93 (docket no. 130), plaintiff benefitted financially during Mr. Ivie's tenure, accruing more overtime and out-of-class earnings than most of his peers.
In October 2005, plaintiff filed an internal complaint against a co-worker, Philip Irvin, for sending an e-mail message to fellow employees concerning Seattle City Light's participation in the Gay Pride Parade. See Richards Decl. at ¶ 25; Exh. M to Andrade Decl. (docket no. 62). A consultant retained to perform an investigation concluded that Mr. Irvin's e-mail was disrespectful, conflicted with workplace expectations, and should have been directed to management rather than co-workers. Exh. M to Andrade Decl. Mr. Irvin issued an apology in February 2006, which plaintiff indicated was satisfactory. Id.; Richards Dep. at 114:11-14, Exh. E to Wollett Decl. (docket no. 63). Plaintiff did not pursue the matter any further. Richards Dep. at 115:5-11, Exh. E to Wollett Decl.
In 2007, plaintiff successfully lobbied for a Seattle City Light Bucket Truck to appear in the Gay Pride Parade. Richards Decl. at ¶ 34. Plaintiff drove the truck in the parade. Id. In connection with planning efforts related to the parade, plaintiff heard from someone in the Seattle Office of Civil Rights ("SOCR") that Superintendent Carrasco had allegedly stated concerns about employees being naked during the parade and expressed surprise that "[t]hey really celebrate this in Seattle." Id. at ¶ 35. Plaintiff suggests that such evidence demonstrates an animus toward homosexuals on the part of Superintendent Carrasco. Plaintiff, however, has not provided a declaration from the SOCR employee who had this supposed conversation with Superintendent Carrasco, and plaintiff's declaration concerning such double hearsay does not constitute admissible evidence. See Fed.R.Evid. 805; see also Fed.R.Evid. 802. Thus, the Court will not consider such evidence in deciding the pending motions for summary judgment. See Fed.R.Civ.P. 56(e). Plaintiff also complains about Superintendent Carrasco's failure to shake hands with plaintiff's partner at a graduation ceremony, see Richards Decl. at ¶ 36, but plaintiff concedes that Superintendent Carrasco did not at that time know plaintiff is homosexual, id., and he provides nothing more than pure inadmissible speculation concerning the reason why Superintendent Carrasco did not shake hands with his partner.
In November 2006, Seattle City Light received an anonymous written complaint alleging that plaintiff and Wanda Davis allowed a non-employee to enter the South Substation and practice for an upcoming apprenticeship working test. Exh. E to Andrade Decl. (docket no. 62). An investigation was performed by Colleen Kinerk, an attorney and partner in the firm of Cable, Langenbach, Kinerk Bauer, LLP. Andrade Decl. at ¶¶ 10-12 Exh. F. The decision to use Ms. Kinerk's services was based in part on Ms. Davis's then pending litigation (the companion case) and her assertion therein that Seattle City Light's Employee Relations Manager, Branda Andrade, who otherwise would have conducted the investigation, was biased. Id. at ¶ 10. Ms. Kinerk was selected because she is highly regarded and had not previously worked for the City of Seattle or Seattle City Light. Id. at ¶ 11.
In December 2006, Ms. Kinerk submitted a 22-page report, opining that plaintiff and Ms. Davis had violated safety protocols, workplace expectations, and ethics standards. See Letter Report dated December 29, 2006, Exh. G to Andrade Decl. (docket no. 62). Ms. Kinerk summarized the undisputed facts as follows. Aaron Duvall was Ms. Davis's daughter's boyfriend. Id. at 4. During the time in question, he was seeking acceptance into Seattle City Light's apprenticeship program. Id. As part of the application process, he was required to take a "working test." Id. at 11. The test took place on October 11, 2006, at the Canal Substation. Id. at 6 n. 6. Mr. Duvall did not perform well enough to continue as a candidate for the apprenticeship program. Id. Sometime prior to the test, however, Ms. Davis assisted Mr. Duvall in gaining access to the South Substation. Id. at 4. During this visit, Mr. Duvall was suited in a harness and allowed to ascend and descend a steel structure in the South Substation yard. Id.
Ms. Davis alleged that plaintiff was the person who suggested that Mr. Duvall should climb the steel structure. Id. at 5. When Ms. Kinerk interviewed plaintiff, however, he indicated that Ms. Davis expressly requested him to provide help to Mr. Duvall. Id. at 6. Plaintiff, described by a co-worker as a person who "observes the chain of command," id. at 8, then selected a harness for Mr. Duvall, provided safety instructions, and proceeded up the steel structure in front of Mr. Duvall. Id. at 6. Once on the structure, plaintiff encouraged Mr. Duvall to simulate the use of binoculars, release his grip, and rely on the harness to hold him. Id. During this time, Ms. Davis served as the "safety watch person" on the ground. Id. at 7.
In his declaration, plaintiff complains that he was provided an inexperienced shop steward during the interview by Ms. Kinerk. Plaintiff, however, fails to explain how a different shop steward would have affected the answers he gave to Ms. Kinerk's questions. Plaintiff does not dispute the underlying facts, and he has provided no basis for believing that his choice (or lack of choice) of shop steward would have changed the result of Ms. Kinerk's investigation or was in any way related to his sexual orientation. Moreover, even if plaintiff's shop steward lacked the requisite experience, his gripe should be directed at his union, not the defendants in this case.
Based on her investigation, which involved numerous interviews and a review of the relevant contractual and regulatory provisions, as well as internal policies, Ms. Kinerk concluded that permitting a non-employee to enter a restricted and potentially dangerous work site, without prior approval of a supervisor, and then climb a steel structure was a violation of safety protocols concerning which plaintiff and Ms. Davis had, contrary to their denials, received sufficient training. Id. at 15-20. Moreover, the type and level of assistance provided to Mr. Duvall was of a nature intended to confer an advantage over other candidates taking the apprenticeship working test, and therefore constituted a breach in fact and in appearance of the City of Seattle's ethics standards. Id. at 20-22.
In February 2007, plaintiff was advised of proposed disciplinary action, namely a five-day suspension. Richards Decl. at ¶ 30; Andrade Decl. at ¶ 12 (docket no. 62). Following plaintiff's and Ms. Davis's submission of materials in response to Ms. Kinerk's report,
Ms. Kinerk was asked to make additional inquiries and provide a supplemental report. Andrade Decl. at ¶ 12. Ms. Kinerk subsequently interviewed five current crew chiefs and one former crew chief, as well as six individuals who were involved in security, training, or recruiting for Seattle City Light. See Supplemental Letter Report dated June 18, 2007, Exh. H to Andrade Decl. Ms. Kinerk made the following findings. No crew chief believed that he or she had authority to permit a non-employee to access a substation. Id. at ¶ II.B.1. In addition, the consensus among crew chiefs was that they would not have allowed a non-employee to enter a substation to climb a structure. Id. at ¶ II.B.7. One crew chief opined that, had he done so, "he would have been fired." Id. at 14.
Based on the reports prepared by Ms. Kinerk, and after considering plaintiff's responsive memoranda and attachments, as well as his statements made during a Loudermill hearing at which he was present and accompanied by a union representative, Seattle City Light Superintendent Jorge Carrasco issued a written decision suspending plaintiff for five days without pay. Letter dated July 24, 2007, Exh. I to Andrade Decl. (docket no. 62). In his written decision, Superintendent Carrasco noted that plaintiff acknowledged he had "engaged in the underlying activity," but denied that his "actions violated any safety or ethical rules." Id. Superintendent Carrasco concluded, however, that plaintiff had failed "to establish to [his] satisfaction that [plaintiff's] conduct was justifiable or appropriate." Id. A few months later, in response to plaintiff's inquiries, Seattle City Light's Director of Energy Delivery Operations, Bernie Ziemianek, explained in a written memorandum that the suspension would be served from October 29 through November 2, 2007, and that plaintiff would be eligible for out-of-class assignments and promotions after March 29, 2008, at the latest; he might, however, have out-of-class and promotional opportunities earlier if he "demonstrate[d] to [Mr. Ziemianek's] satisfaction that [he had] learned from the experience, that the misconduct will not recur, and that [he] will exercise good leadership and judgment skills in the future." Sheridan First Decl. at 711-712 (docket no. 133-3).
Back in February 2007, around the time when plaintiff was advised of the proposed five-day suspension, but before Ms. Kinerk had completed her supplemental investigation, plaintiff had applied for a two-year out-of-class Craft Instructor-Apprenticeship position. Richards Decl. at ¶ 32; Johnson Decl. at ¶ 2 Exh. A (docket no. 58). Plaintiff was advised via e-mail that he had not been chosen to interview for the position. Exh. 16 to Richards Dep., Exh. E to Wollett Decl. (docket no. 63). In response to plaintiff's inquiry, South Area Field Operations Manager Rich Moralez indicated via e-mail that the reason plaintiff was not interviewed was a determination by Personnel Specialist Susan McClure that plaintiff did not meet the five-year experience requirement. Exh. 18 to Richards Dep., Exh. E to Wollett Decl. Upon further investigation, Ms. McClure's calculation proved incorrect because it failed to take into account the last year of apprenticeship, which could arguably be counted pursuant to a memorandum authored in October 2000 by former Director Pam Smith-Graham. Johnson Decl. at ¶ 2 Exh. B. Ms. McClure, however, made this alleged error with regard to every applicant, thereby deeming three other employees, Dawn Nelson, Jay Jackson, and Rich Togerson, also ineligible for the position. Id. at ¶ 4-7 Exhs. C-G. Plaintiff provides no basis for believing that these three employees are homosexual or that sexual orientation played any role in concluding that they and/or plaintiff did not meet the minimum qualifications for the job.
In 2007, plaintiff also sought promotion to crew chief. West Decl. at ¶ 3 (docket no. 59). Plaintiff was ranked second among his peers. Id. Exh. B. Due to complaints from applicants about the process, Seattle City Light decided to repeat it. Id. After scores were retallied, plaintiff still ranked second, but the rankings of other candidates changed. Exh. B to West Decl. By the time promotional decisions were being made, however, plaintiff was not eligible due to the disciplinary sanctions stemming from his role in Mr. Duvall's accessing of the South Substation and climbing of a structure. West Decl. at ¶ 3.
B. Discipline of Other Employees
Discussion A. Summary Judgment Standard
See See Id. See 56 Celotex Corp. v. Catrett, 477 U.S. 317 323 Anderson v. Liberty Lobby, Inc., 477 U.S. 242248 Celotex, 477 U.S. at 323 Anderson, 477 U.S. at 249
Karl Horne was disciplined for leaving a USB flash drive containing inappropriate material plugged in to a computer at the South Substation and then failing, after an investigation had commenced, to disclose the activity to management. Sheridan First Decl. at 767-68 (docket no. 132). Unlike plaintiff's wrongdoing, Mr. Horne's misconduct did not involve any safety violations, and plaintiff makes no showing that Mr. Horne's punishment was not commensurate with his actions or with discipline imposed on other employees for similar misbehavior.
Rodney Dunlap received a reprimand for improperly using a work vehicle for personal business and inappropriately transporting a non-employee therein. Sheridan First Decl. at 931 (docket no. 133-8). Mr. Dunlap's transgression bears little or no similarity to plaintiff's actions, which placed a non-employee at potential risk of serious injury.
In 2007, Ed Kefgen was suspended for one day without pay for shoving another employee. West Decl. at ¶ 3.5 (docket no. 59); Sheridan First Decl. at 895 (docket no. 133-6). As a result of this disciplinary action, pursuant to an unwritten policy prohibiting promotion and out-of-class assignments for one year following substantial discipline, Mr. Kefgen was deemed ineligible for a promotion. West Decl. at ¶ 3.5; Ziemianek Decl. at ¶ 5 (docket no. 60). Such policy had also been applied in 2004 and 2006 when other employees had sought promotions after receiving discipline. Andrade Dep. at 278:2-280:22, Exh. M to Wollett Decl. (docket no. 63); Hardie Decl. at ¶ 5 (docket no. 157). Although the City of Seattle concedes that Mr. Kefgen inappropriately received out-of-class assignments after his suspension, it explains that Mr. Kefgen's supervisor acted contrary to management instructions in making such assignments, that the supervisor was chided for doing so and was consequently denied a promotion, and that the supervisor subsequently left Seattle City Light and went to work for another employer. Heimgartner Decl. at ¶ 7 (docket no. 158). Thus, plaintiff's allegation that the unwritten policy has been "selectively applied" to him on account of sexual orientation or protected activity lacks any factual basis.
Moreover, this same evidence actually contradicts plaintiff's assertion that, on account of his sexual orientation or protected activity, Seattle City Light has "selectively applied" to him the unwritten policy rendering suspended employees ineligible for promotion and out-of-class assignments for a certain period of time. According to the documents supplied by plaintiff, in February 2008, a crew chief and a journey level lineworker who were both suspended for safety violations were explicitly advised in letters notifying them of the recommended discipline that, as a result of the suspensions, they would not be eligible for promotion for one year or for out-of-class opportunities for at least six months. Exh. 4 to Simpson Decl. (docket no. 126). Thus, the evidence demonstrates uniform application of the unwritten policy. Plaintiff, however, attempts to rely on these letters to show that the unwritten policy was a "new practice," applied for the first time in his case. The letters do not support plaintiff's broad proposition; the most they establish is that Seattle City Light has begun including standard language about the unwritten policy in its discipline notifications. See Hardie Decl. at ¶¶ 5 6 (docket no. 157) (although the unwritten policy was applied in 2004 and 2006, as well as to Ed Kefgen, on whose behalf the union never raised any challenge, in light of the claim in the companion case that "this practice was additional unfair discipline," Seattle City Light started "writing it into disciplinary letters to avoid any future claims of lack of notice."). Meanwhile, with regard to plaintiff, Seattle City Light prepared a tailored memorandum communicating to him the effect of his suspension and the steps he could take to regain management's trust. Sheridan's First Decl. at 711-12 (docket no. 133-3).
When a properly supported motion for summary judgment has been presented, the adverse party "may not rely merely on allegations or denials" in its pleadings. Fed.R.Civ.P. 56(e). The non-moving party must set forth "specific facts" demonstrating the existence of a genuine issue for trial. Id.; Anderson, 477 U.S. at 256. A party cannot create a genuine issue of fact by simply contradicting his or her own previous sworn statement, Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999), or by asserting "some metaphysical doubt" as to the material facts, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Likewise, discrediting the testimony proffered by the moving party will not usually constitute a sufficient response to a motion for summary judgment. Anderson, 477 U.S. at 256-57.
To survive a motion for summary judgment, the adverse party must present "affirmative evidence," which "is to be believed" and from which all "justifiable inferences" are to be favorably drawn. Id. at 255, 257. When the record, however, taken as a whole, "could not lead a rational trier of fact to find for the nonmoving party," summary judgment is warranted. See Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006); see also Beard v. Banks, 126 S. Ct. 2572, 2578 (2006) ("Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" (quoting Celotex, 477 U.S. at 322)).
B. Statute of Limitations
The City of Seattle moves for summary judgment with respect to claims accruing more than three years and sixty days before plaintiff filed this action. Plaintiff instituted this suit on July 5, 2007. Complaint (docket no. 1). The statute of limitations for claims brought under the Washington Law Against Discrimination ("WLAD") is three years. Antonius v. King County, 153 Wn.2d 256, 261-62, 103 P.3d 729 (2004); see RCW 4.16.080(2) (action for personal injury must be commenced within three years). The statute of limitations applicable to plaintiff's claims under 42 U.S.C. § 1983 is also three years. RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir. 2002). The statute of limitations is tolled during the sixty-day period of mandatory presentment to a local governmental entity. See RCW 4.96.020(4). Thus, the relevant date for purposes of the statute of limitations analysis in this case is May 6, 2004. The City of Seattle argues that all causes of action based on discrete acts occurring before this date are time barred.
Plaintiff's only response is that the three-year statute of limitations does not apply to hostile work environment claims. Plaintiff's Response at 23 (docket no. 138-1). Plaintiff's assertion is a poorly worded summary of the relevant law. As explained more fully in the Court's order granting summary judgment in favor of defendants in the companion case, although acts contributing to a hostile work environment are treated as one unlawful employment practice for purposes of the statute of limitations, discrete acts, such as termination, failure to promote, denial of transfer, or refusal to hire, cannot qualify as related acts, and therefore, are not themselves cognizable unless occurring within the limitations period. Antonius v. King County, 153 Wn.2d 256, 264, 103 P.3d 729 (2004) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108-13 (2002)). Here, plaintiff does not deny that any delay or reluctance on the part of Seattle City Light in paying his commuting expenses while he was an apprentice constituted a discrete act, or that plaintiff's assignment to the South Substation at the end of his apprenticeship had the requisite "degree of permanence" to trigger his duty to assert his rights. Moreover, plaintiff offers no explanation of how the comments or teasing of co-workers during the course of his apprenticeship, about which plaintiff never complained to management, can be imputed to Seattle City Light. See Washington v. Boeing Co., 105 Wn. App. 1, 11, 19 P.3d 1041 (2000) (before an employee's actions are imputed to the employer, a plaintiff must demonstrate that the employer (1) authorized, knew, or should have known of the harassment, and (2) failed to take reasonably prompt and adequate corrective action). Thus, with respect to events occurring during plaintiff's apprenticeship, as well as all discrete acts prior to May 6, 2004, the Court GRANTS summary judgment in favor of the City of Seattle.
See Order at 27-29 (docket no. 249), Davis v. City of Seattle, , Case No. C06-1659Z (W.D. Wash. Jan. 22, 2008).
C. Merits of Plaintiff's Claims
1. Disparate Treatment and Retaliation
To defeat the pending motions for summary judgment, plaintiff must, at a minimum, establish a prima facie case of either disparate treatment or retaliation. See Hines v. Todd Pac. Shipyards Corp., 127 Wash. App. 356, 370-71, 112 P.3d 522 (2005) ("Washington courts have adopted the McDonnell Douglas/Bur-dine three-part burden allocation framework for disparate treatment cases." (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981))); see also Tyner v. Dep't of Soc. Health Servs., 137 Wn. App. 545, 564, 154 P.3d 920 (2007) (the McDonnell Douglas/Burdine "burden shifting scheme also applies to retaliation claims").
To present a prima facie case of disparate treatment, plaintiff must prove that (i) he is a member of a protected class, (ii) he was treated less favorably than a similarly situated nonprotected employee, and (iii) the non-protected employee was doing the same work. See Clarke v. Office of the Attorney Gen., 133 Wn. App. 767, 788-89, 138 P.3d 144 (2006). To make out a prima facie case of retaliation, plaintiff must establish that (i) he engaged in statutorily protected activity, (ii) Seattle City Light and/or Jorge Carrasco took some adverse employment action against him, and (iii) a causal link exists between the protected activity and the adverse action. See Tyner, 137 Wn. App. at 563.
Only if plaintiff presents sufficient evidence of a prima facie case does the burden shift to Seattle City Light and Superintendent Carrasco to provide evidence of legitimate, nondiscriminatory reasons for their actions. See id. at 563-64; see also Hines, 127 Wn. App. at 371. The final burden rests on plaintiff to produce evidence that the asserted reasons are merely a pretext. See Hines, 127 Wn. App. at 371. To establish pretext, plaintiff must put forward specific evidence indicating that the articulated nondiscriminatory reasons are "unworthy of belief." See id. at 372. "Speculation and belief are insufficient to create a fact issue as to pretext. Nor can pretext be established by merely conclusory statements of a plaintiff who feels that he has been discriminated against." Id. (quoting McKey v. Occidental Chem. Corp., 956 F. Supp. 1313, 1319 (S.D. Tex. 1997)). Moreover, summary judgment may be granted in favor of an employer even when the employee has created a weak issue of fact concerning pretext, if abundant, uncontroverted, independent evidence indicates that no discrimination or retaliation occurred. See Tyner, 137 Wn. App. at 564 (quoting Milligan v. Thompson, 110 Wn. App. 628, 637, 42 P.3d 418 (2002) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000))).
Jorge Carrasco has cited two Washington cases in support of his assertion that his burden is limited to showing that his decision to suspend plaintiff was based on substantial evidence that he reasonably believed was true. Reply at 5 (docket no. 152). The cited cases, however, did not involve claims of discrimination or retaliation, and they addressed only whether the respective terminations for "just cause" or a specified infraction constituted breaches of the employment contracts. See Gaglidari v. Denny's Restaurants, Inc., 117 Wn.2d 426, 815 P.2d 1362 (1991); Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 769 P.2d 298 (1989). Thus, the Court has not applied the standard proposed by Mr. Carrasco.
In this case, plaintiff fails to present even a prima facie case of disparate treatment or retaliation. Although plaintiff discusses Karl Horne and Bill Ivie at great length, he does not describe any adverse employment action stemming from his dealings with either man. Plaintiff was not disciplined in connection with Ms. Davis's inappropriate treatment of Mr. Horne, and plaintiff does not identify any ill treatment, financial or otherwise, that he received from Mr. Ivie. Plaintiff's assertion that co-worker Phil Irvin's apology was not genuine does not present an actionable claim; plaintiff admits that he accepted the apology relating to Mr. Irvin's e-mail concerning the Gay Pride Parade, and that he did not further pursue the matter. Even if Mr. Irvin continued to harbor anti-homosexual sentiments, plaintiff has no basis for imputing them to Seattle City Light; the undisputed evidence indicates that Seattle City Light promptly investigated plaintiff's complaint, confronted Mr. Irvin about his behavior, and resolved the problem to plaintiff's expressed satisfaction. See Washington, 105 Wn. App. at 11.
Plaintiff instead tries to compare himself to Mr. Ivie, offering the declaration of co-worker Carol Girdis, who has recounted a previous instance in which Mr. Ivie brought a non-employee into the South Substation. See Girdis Decl. at 1-3 (docket no. 114). Plaintiff's reliance on such evidence is misplaced. Ms. Girdis makes no contention that Mr. Ivie allowed the non-employee to climb a structure in the substation yard or assisted the non-employee in doing so. Moreover, even if Mr. Ivie's actions violated Seattle City Light policies, the fact that he was not caught or punished does not vindicate plaintiff's behavior. Finally, to the extent Ms. Girdis's testimony is being offered as evidence of Mr. Ivie's harassing conduct, Ms. Girdis herself admits that she "did not report his behavior to anyone," id. at 4, and therefore, any mistreatment of Ms. Girdis by Mr. Ivie cannot be imputed to Seattle City Light. See Washington, 105 Wn. App. at 11.
As to the alleged miscalculation of plaintiff's seniority date, which led to him being deemed ineligible for the Craft Instructor-Apprenticeship position, plaintiff has not established that he was treated any differently or less favorably than similarly situated nonprotected employees. Plaintiff does not challenge or contradict the City of Seattle's evidence that the same calculation method was applied to all candidates and that three other employees, who have not been identified by plaintiff as homosexual, were also disqualified and not interviewed for the position. Finally, with regard to his five-day suspension, plaintiff has not demonstrated that he was punished more severely than heterosexual or non-litigating employees engaging in comparable violations of safety protocols. Plaintiff's contention that the proximity between the date he filed this lawsuit and the date he was advised of Superintendent Carrasco's final decision demonstrates the requisite retaliatory causal link lacks merit. Ms. Kinerk's initial report was issued in December 2006, and plaintiff was advised of proposed disciplinary action in February 2007, months before he initiated this action. Ms. Kinerk's supplemental report, from which plaintiff could infer that the recommended sanction was likely to be imposed, was available in June 2007, a couple of weeks before plaintiff filed suit. Although Superintendent Carrasco's written decision postdates plaintiff's complaint by nineteen days, the sequence of events in this case does not create a presumption of retaliatory motive. See Wilmot v. Kaiser Alum. Chem. Corp., 118 Wn.2d 46, 69, 821 P.2d 18 (1991) ("[p]roximity in time between the claim and the firing is a typical beginning point, coupled with evidence of satisfactory work performance and supervisory evaluations" (emphasis added)). To adopt plaintiff's simplistic approach would encourage every employee with advance warning of disciplinary action to file suit before the sanction is imposed so as to preserve the ability to claim retaliation. The Court declines to do so.
Likewise, Paula Rose's alleged statement that plaintiff is "collateral damage" for Ms. Davis's lawsuit, Richards Decl. at ¶ 46, does not prove the requisite causal link. As an initial matter, plaintiff does not provide a declaration from Ms. Rose, and he fails to establish that Ms. Rose's statement to him is admissible hearsay. Statements concerning the reasons for an adverse employment action are admissible under Rule 801(d)(2)(D) only if the declarant was involved in the decision. See Taylor v. Battelle Columbus Labs., 680 F. Supp. 1165, 1171 (S.D. Ohio 1988) (citing Hill v. Spiegel, Inc., 708 F.2d 233 (6th Cir. 1983)); see also Young v. James Green Mgmt., Inc., 327 F.3d 616, 622 n. 2 (7th Cir. 2003) (quoting Aliotta v. Nat'l R.R. Passenger Corp., 315 F.3d 756 (7th Cir. 2003)). Plaintiff has offered no evidence that Ms. Rose participated in the decision to suspend him or that Ms. Rose had the authority to discuss or express views about the disciplinary process. Moreover, even if admissible, Ms. Rose's statement does no more than express a personal opinion having nothing to do with any protected activities on plaintiff's part.
Even if, however, plaintiff is presumed to have presented a prima facie case of discrimination or retaliation, the adverse decision here rests on legitimate grounds, and plaintiff must present some evidence that the articulated basis for his suspension is "unworthy of belief." See Hines , 127 Wn. App. at 372. Plaintiff has not done so. Instead, plaintiff asserts that the City of Seattle and Superintendent Carrasco have failed to articulate a legitimate reason for plaintiff's suspension, citing Davis v. Team Elec. Co., 520 F.3d 1080 (9th Cir. 2008). Team Elec., however, is entirely distinguishable. In Team Elec., shortly after the plaintiff filed an employment discrimination claim, she was laid off. Id. at 1094. Although the employer laid off sixteen other workers for economic reasons, the employer could not articulate why it chose to lay off the plaintiff in particular. Id. ("as the company conceded at oral argument, there is no evidence in the record as to why Davis in particular was laid off"). On the other hand, the evidence indicated that the plaintiff was senior to electricians that were retained by the employer and that she was considered by her supervisors to be a skilled and dedicated worker. Id. Thus, the Ninth Circuit concluded that the plaintiff had presented sufficient evidence to raise a genuine issue of material fact concerning whether the employer had a retaliatory motive for laying her off. Id. at 1095. In contrast, the adverse employment action here involves only plaintiff and Wanda Davis. The five-day suspension was based on specific reasons outlined in two written reports by an external investigator, a memorandum advising plaintiff of the proposed disciplinary action, and a letter by the final decision-maker, all of which are part of the record in this case. In sum, this case simply bears no resemblance to Team Elec.
Although plaintiff continues to discount the conclusions drawn by Ms. Kinerk and adopted by Superintendent Carrasco, he does nothing to undermine the City of Seattle's explanation for the suspension. The Court's function in a case of this nature is not to second-guess the employer's interpretation of its policies and regulations, but rather to assess whether sufficient evidence of discriminatory or retaliatory behavior has been presented to warrant a trial. Here, plaintiff does not make the requisite showing; he does not dispute the wrongdoing that led to his suspension, and he offers no evidence that similar misconduct by non-protected employees has been less harshly punished. The Court therefore GRANTS summary judgment in favor of the City of Seattle and Jorge Carrasco as to plaintiff's disparate treatment and retaliation claims. 2. Hostile Work Environment
In disputing Ms. Kinerk's report, plaintiff has inappropriately extrapolated from deposition testimony provided by Christopher Heimgartner, the Customer Service and Energy Delivery Officer for Seattle City Light. During his deposition, Mr. Heimgartner indicated that no policy violation would have occurred if plaintiff and Wanda Davis had obtained permission in advance of assisting Aaron Duvall to climb the structure at the South Substation. See Heimgartner Dep. at 53:16-54:2, Sheridan Second Decl. at 96-97 (docket no. 134). Citing this testimony, plaintiff asserted at oral argument that "safety is a red herring" because Mr. Duvall's climb could have been authorized. Plaintiff's contention misses the mark. Plaintiff offers no evidence that, had he and Ms. Davis asked, they would have received permission for the climb. In addition, regardless of whether the climb was inherently safe or unsafe, Seattle City Light had legitimate liability concerns justifying its insistence on management approval as a condition precedent to this type of behavior. Plaintiff's other attacks on Ms. Kinerk's report are equally misguided, particularly his implied argument that a safety policy must anticipate and articulate every possible way in which an employee could be injured or injure someone else, which is an onerous standard unsupported by any authority. Plaintiff's submission of declarations from other Seattle City Light employees, whose positions or relationships to this case are not fully explained, is likewise of no avail. For example, Phil Boulton describes various non-employees, including fire and police personnel, who have been allowed into a substation, but he does not identify anyone else who has climbed a structure in the yard. See Boulton Decl. at 3 (docket no. 113). Kari Lundquist discusses job shadowing by current employees, but does not address whether such opportunities are available to candidates or other non-employees or the climbing of any structures by anyone. See Lundquist Decl. at 3 (docket no. 118). Finally, Alice Lockridge states that "teaching is not cheating" and indicates that "it is not cheating to tell the test taker[s] what will be expected of them and letting them try the test or practice for it before the actual test happens," Lockridge Decl. at 4 (docket no. 116), but she does not speak to the use of Seattle City Light facilities for test preparation or to the practice of providing opportunities to one candidate that were not made available to any other applicant. Finally, plaintiff offers no basis for concluding that Ms. Lockridge speaks for Seattle City Light or that her opinions are other than merely her own.
Plaintiff's contention that resort to an external investigator, namely Colleen Kinerk, itself constitutes evidence of discriminatory animus lacks any merit. Plaintiff's underlying assumption that, had Seattle City Light handled the matter internally at the supervisor level, as he suggests is customary, he would have received less severe or perhaps no disciplinary sanctions is based on nothing more than wishful thinking. Moreover, to the extent an internal review had produced similar results, for example, an equivalent, slightly shorter, or perhaps longer suspension, the City of Seattle would have been subject to attack for not involving an external investigator. This type of "no-win" challenge proves nothing of any relevance to the disposition of this case.
Plaintiff attempts to transmute his various disparate treatment claims into one hostile work environment claim. Plaintiff may not do so. Discrete acts, such as refusal to promote, denial of transfer, suspension, and demotion, are independently actionable, and they may not be cobbled together into a harassment claim. See Antonius, 153 Wn.2d at 264; see also Morgan , 536 U.S. at 113 ("discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges"). Indeed, were the Court to accept plaintiff's view, then the hostile work environment rubric would serve no purpose; it stands in contrast to discrete acts of discrimination or retaliation, and it operates in circumstances when an independent act is not sufficient to cause distress, but a series of similar or related acts is intolerable. To prove a claim of hostile work environment, plaintiff must establish that the harassment at issue (i) was unwelcome, (ii) was due to his membership in a protected class, (iii) affected the terms and conditions of his employment, and (iv) was imputable to his employer. Clarke , 133 Wn. App. at 785. To satisfy the third element, the harassment must be "sufficiently pervasive so as to alter [his] employment conditions" and the conduct must be more than merely offensive. Id. "The conduct must be both objectively abusive (reasonable person test) and subjectively perceived as abusive by the victim." Adams v. Able Bldg. Supply, Inc. , 114 Wn. App. 291, 297, 57 P.3d 280 (2002) (citing Harris v. Forklift Sys. , 510 U.S. 17, 21-22 (1993)).
Plaintiff does not allege any actionable harassing conduct by Bill Ivie or any other supervisor. Moreover, he offers no evidence that any harassing activities by co-workers or the like could be imputed to Seattle City Light or Superintendent Carrasco; he describes no incident in which he complained about harassment and his employer failed to take reasonably prompt and adequate corrective action. See Washington v. Boeing Co., 105 Wn. App. 1, 11, 19 P.3d 1041 (2000); see also Sangster v. Albertson's, Inc., 99 Wn. App. 156, 164-65, 991 P.2d 674 (2000) (observing that, when a supervisor is alleged to have created a hostile work environment, an employer may raise an affirmative defense requiring proof that the employer exercised reasonable care to prevent and promptly correct harassing behavior and the plaintiff unreasonably failed to take advantage of such preventive or corrective opportunities (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998))). Finally, the behavior about which plaintiff complains fails to satisfy either the sufficiently pervasive or the objectively abusive standard, and therefore, does not as a matter of law support a claim for hostile work environment. Thus, the Court GRANTS summary judgment in favor of the City of Seattle and Jorge Carrasco with respect to plaintiff's hostile work environment claim.
3. Section 1983 Claims
In this context, to establish a violation of 42 U.S.C. § 1983, plaintiff must prove that Seattle City Light and/or Jorge Carrasco acted with the intent to discriminate. See Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1112 (9th Cir. 1991); see also Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 583 n. 16 (1984) (relief is authorized under Section 1983 only when intentional discrimination has been proven or admitted). Having failed to demonstrate disparate treatment or retaliation under the WLAD, plaintiff likewise has not met the purposeful discrimination requirement for a Section 1983 claim based on equal protection. See Sischo-Nownejad , 934 F.2d at 1112 (citing Knight v. Nassau County Civil Serv. Comm'n, 649 F.2d 157, 161-62 (2d Cir. 1981)). The Court therefore GRANTS summary judgment in favor of the City of Seattle and Jorge Carrasco with regard to plaintiff's claims under Section 1983.
Plaintiff asserts that Jorge Carrasco is individually liable pursuant to both the WLAD's aiding and abetting provision, RCW 49.60.220, and Section 1983. Plaintiff also raises claims under the Seattle Municipal Code. In light of the Court's rulings on the causes of action brought under the WLAD, the Court also GRANTS summary judgment against plaintiff on the individual claims against Jorge Carrasco and the claims based on municipal law.
Conclusion
For the foregoing reasons, the Court GRANTS both pending motions for summary judgment. Judgment shall be entered forthwith in favor of the City of Seattle and Jorge Carrasco.
IT IS SO ORDERED.