Opinion
Case No. 3:18-cv-00755-SB
11-16-2020
DMITRI SIMONS, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendant.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
Dmitri Simons ("Simons") filed this action against his employer, Costco Wholesale Corporation ("Costco"), alleging claims of racial discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2000e-17; 42 U.S.C. § 1981; and OR. REV. STAT. § 659A.030. Costco filed a motion for summary judgment (ECF No. 53), and Simons did not respond. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. For the reasons explained below, the Court recommends that the district judge grant Costco's motion for summary judgment.
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BACKGROUND
Simons alleges that on or about February 21, 2017, Costco demoted him from a Front-End Staff Manager to a Cashier and transferred him to a different Costco warehouse, based on "a purported improper employment practice, for which similarly situated Caucasian manager colleagues were neither disciplined, nor demoted." (Second Am. Compl. ¶ 12.) Specifically, Costco alleged that Simons "engaged in physical contact with a subordinate employee when he placed his hand on her shoulder in a gesture of support and encouragement in the performance of her job[,]" and in turn "violated [a] Costco [p]olicy regarding Manager/Supervisor Standard of Ethics and Costco's inappropriate fraternization and anti-harassment policies." (Id.)
Simons alleged that the supervisor who disciplined Simons "had stated to Costco management staff that Simons 'looked too gangster,'" even though he "barely kn[ew]" and had only "brief and superficial" interactions with Simons. (Id. ¶ 14.) According to Simons, two Costco managers, who are Caucasian, "committed improper employee practices and [were] neither disciplined nor demoted in a manner as severe as [Simons] for their own violations of Costco [p]olicy regarding Manager/Supervisor Standard of Ethics and Costco's inappropriate fraternization and anti-harassment policies." (Id. ¶ 13.)
In support of its motion for summary judgment, Costco submitted evidence of its investigation that resulted in Simons' demotion, as well as evidence of several prior investigations of Simons' alleged inappropriate workplace behavior. During the investigation resulting in Simons' demotion challenged here, six female subordinates accused Simons of inappropriate conduct, and the investigation concluded that the subordinates' complaints were credible and that it would be inappropriate for Simons to remain in a supervisory role. (Decl. of Crystal Fleming ¶¶ 4-18.) Costco had previously investigated allegations that Simons made sexual comments and inappropriately touched two female subordinates at a Costco-sponsored bowling party in 2008, and that investigation found the subordinates' complaints were credible, resulting in Simon's demotion and requiring counseling with a third-party trainer. (Decl. of Mike McNairy ¶¶ 4-12.) A similar investigation of Simons' alleged inappropriate comments and touching of a female subordinate resulted in a warning in 2011. (Decl. of John Bartlett ¶¶ 3-4.) Finally, an investigation of yet another female subordinate's allegations of inappropriate comments and touching in 2016 resulted in additional anti-harassment training for Simons, just a few months before the allegations surfaced that resulted in the demotion Simons challenges here. (Decl. of Gene Mormon ("Mormon Decl.") ¶¶ 5-6.)
ANALYSIS
I. STANDARD OF REVIEW
Summary judgment is proper if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). At the summary judgment stage, the court views the facts in the light most favorable to the non-moving party, and draws all reasonable inferences in favor of that party. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)).
II. DISCUSSION
Simons alleges that Costco demoted him in 2017 because of his race, in violation of federal and state law. (Second Am. Compl. ¶¶ 16-22.) Costco moves for summary judgment on the ground that Simons' race discrimination claims fail as a matter of law. (Mot. for Summ. J. at 13-24.)
Simons did not file a response to Costco's motion, despite the Court's notice that his response was overdue but that he may request an extension of the filing deadline. (See ECF No 61.) On the date his response was due, Simons filed a Rule 56(d) Motion to Defer Consideration of Defendant's Motion for Summary Judgment, requesting an extension of the discovery deadline. (ECF No. 59.) The Court denied the motion because the discovery deadline had expired almost three months earlier, and Simons offered no explanation for why he had not completed discovery prior to the deadline, nor timely moved for an extension of the discovery deadline, nor filed any discovery motions alleging that Costco's discovery responses were inadequate. See ECF No. 61; see also Floyd v. Ada Cty., No. 1:17-cv-00150-DCN, 2020 WL 1991400, at *12 (D. Idaho Apr. 27, 2020) ("The Court rejects [the plaintiff's] attempt to compel discovery through Rule 56(d) after both the discovery and dispositive motion deadlines have passed." (citing Audi AG v. D'Amato, 469 F.3d 534, 541 (6th Cir. 2006))).
The Court applies the McDonnell Douglas burden shifting framework to Simons' claims, which requires Simons to first establish a prima facie case of discrimination before the burden shifts to Costco to articulate a legitimate nondiscriminatory reason for his demotion. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) ("To establish a prima facie case under Title VII, a plaintiff must offer proof: (1) that the plaintiff belongs to a class of persons protected by Title VII; (2) that the plaintiff performed his or her job satisfactorily; (3) that the plaintiff suffered an adverse employment action; and (4) that the plaintiff's employer treated the plaintiff differently than a similarly situated employee who does not belong to the same protected class as the plaintiff." (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973))); Williams v. City of Bellevue, No. 2:16-cv-01034-RAJ, 2017 WL 4387590, at *4 (W.D. Wash. Oct. 3, 2017) ("The Court analyzes Plaintiff's state and federal race discrimination claims under the same burden shifting framework established in McDonnell Douglas[.]") (citations omitted).
Simons has not met his burden of demonstrating a prima facie case of race discrimination here. Simons may meet his burden by presenting either direct or circumstantial evidence, but the evidence must be admissible. See Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002) ("A trial court can only consider admissible evidence in ruling on a motion for summary judgment." (citing FED. R. CIV. P. 56(e) and Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988))). Simons did not respond to Costco's motion for summary judgment, and has not submitted any evidence to support a prima facie case. The Court's examination of the record reveals that the only direct evidence that could support Simons' allegations of racial discrimination is his deposition testimony that on an unspecified date in 2016, a secretary told Simons that an assistant general manager had told her that the general manager had told the assistant general manager that Simons looked "too gangster." (Mot. for Summ. J. at 15) (citing Simons' deposition testimony). If Simons had responded to the motion for summary judgment and proffered the secretary's statement for the truth of the fact that the general manager made this statement, the secretary's statement would be inadmissible hearsay. See FED. R. EVID. 801, 802.
The general manager denies making the statement. (See Mormon Decl. ¶ 13.)
Simons may also establish a prima facie case of race discrimination by circumstantial evidence, if he can prove, among other elements, that Costco treated him differently than similarly situated employees because of his race. See Amadi v. ConAgra Foods, Inc., 881 F. Supp. 2d 1227, 1238 (D. Or. 2012) ("In the absence of direct evidence, a plaintiff must establish a prima facie case of race discrimination by showing that: (1) he is a member of a protected class; (2) he performed his job adequately; (3) he suffered an adverse employment action; and (4) similarly situated individuals outside his protected class were treated differently." (citing Cornwell, 439 F.3d at 1031)). Although Simons has alleged that Costco did not discipline three similarly situated white managers for similarly inappropriate conduct in the workplace, he has submitted no evidence in support of his allegations. Even if the Court considers Simons' deposition testimony in support of his disparate treatment allegations, Simons testified that he has no personal knowledge of whether the white managers were ever disciplined (Mot. for Summ. J. at 21-22) (citing Simons' deposition testimony), and his testimony about what he heard from others is inadmissible hearsay. See Lucke v. Multnomah Cty., No. CV-06-1149-ST, 2008 WL 4372882, at *29 (D. Or. Sept. 22, 2008) (declining to consider the plaintiff's evidence of comparators at summary judgment where "the only evidence [the plaintiff] offers for these alleged incidents is her uncorroborated testimony which does not demonstrate any personal knowledge").
There is no admissible evidence in the current record to support a prima facie case that Costco demoted Simons because of his race. Accordingly, the district judge should grant Costco's motion for summary judgment. See Maduka v. Columbia/HCA Healthcare Corp., 234 F. App'x 708, 710 (9th Cir. 2007) (affirming district court's grant of summary judgment for employer on employee's race discrimination claims where employee failed to establish a prima facie case under McDonnell Douglas).
The Court recognizes that establishing a prima facie case is a low bar. See Tornabene v. Nw. Permanente, P.C., 156 F. Supp. 3d 1234, 1242 (D. Or. 2015) ("The requisite degree of proof necessary to establish a prima facie case . . . is minimal and does not even need to rise to the level of a preponderance of the evidence." (quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008)) (alteration in original)). Even if Simons had presented evidence to establish a prima facie case to shift the burden to Costco, Costco has presented substantial evidence that it had legitimate nondiscriminatory reasons to demote Simons from his supervisory position in 2017, including credible allegations from several subordinate women who reported Simons engaged in inappropriate workplace conduct in 2008, 2011, and 2016, followed by the six additional women who reported similar misconduct in 2017. --------
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT Costco's motion for summary judgment (ECF No. 53).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 16th day of November 2020.
/s/_________
HON. STACIE F. BECKERMAN
United States Magistrate Judge