THOMAS O. RICE, Chief District Judge.
BEFORE THE COURT is Defendant Safeway Inc.'s Motion for Summary Judgment (ECF No. 21). The Court held a hearing in Spokane, Washington on September 11, 2018 and heard oral argument from the parties. The Court has reviewed the files and the record, and is fully informed. For the reasons discussed below, Defendant's Motion (ECF No. 21) is
A movant is entitled to summary judgment if "there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is "genuine" where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. The moving party bears the "burden of establishing the nonexistence of a `genuine issue.'" Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). "This burden has two distinct components: an initial burden of production, which shifts to the nonmoving party if satisfied by the moving party; and an ultimate burden of persuasion, which always remains on the moving party." Id.
Only admissible evidence may be considered. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The nonmoving party may not defeat a properly supported motion with mere allegations or denials in the pleadings. Liberty Lobby, 477 U.S. at 248. The "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [the non-movant's] favor." Id. at 255. However, the "mere existence of a scintilla of evidence" will not defeat summary judgment. Id. at 252. Further, the court need not, and will not, "scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The opposing party must present significant and probative evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). "[U]ncorroborated and self-serving testimony" alone will not create a genuine issue of material fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).
The instant action involves several claims by Plaintiff Dan Wilson against his past-employer, Defendant Safeway Inc., for alleged (1) disability discrimination in violation of the Washington Law Against Discrimination (WLAD), RCW § 49.78.010, et seq., (2) violation of the Washington Family Leave Act (WFLA), RCW 49.78.010, et seq., and (3) wrongful discharge in violation of public policy. ECF No. 1-1 at 5-6, ¶¶ 3.1-5.5.
Plaintiff began working at Safeway in 1985. ECF No. 22 at 2. By August 2001, Plaintiff was promoted to Acting Meat Department Manager and then Meat Department Manager soon thereafter. ECF No. 22 at 2. Unbeknownst to Defendant, Plaintiff began drinking around two bottles of wine (or eight drinks) per day during 2014. ECF No. 23-1 at 5.
Jackie Katanik, District Manager for Safeway, oversaw several Safeway stores (including overseeing sales, gains, profits, food safety, safety of stores, and their store standards and services), including the Safeway where Plaintiff worked. Ms. Katanik became familiar with Plaintiff in March, 2014. ECF No. 27-1 at 4, 6. Around this time, Ms. Katanik first started inspecting the East Wenatchee store and identified problems in the meat department: "it was not dating the cooler. Their trim pans, it was old meat, a ton of out-of-stocks. The Department was just filthy dirty and not being cleaned on a regular basis and temps weren't being adhered to." ECF No. 27-1 at 8. Ms. Katanik testified that Plaintiff had other issues:
ECF No. 27-1 at 9. Ms. Katanik did not see improvement in the Meat department while Plaintiff remained in his position. ECF No. 27-1 at 13.
Jason Helaas, the "meat merchandiser" for Safeway, ECF No. 23-1 at 23, who oversees the meat departments within "District 31" for Safeway, ECF No. 24 at ¶ 4, visited Plaintiff's meat department on April 29, 2015. ECF No. 25 at ¶ 10. Jason Helaas wrote a letter to Laura Villalobos, then Store Director (a.k.a. Store Manager), ECF No. 27-1 at 59, expressing his concern about Plaintiff not working during his shifts and the condition of the meat department:
ECF No. 25-1 at 2 (emphasis in original). Notably, Plaintiff testified that he was praised for leaving work early. ECF No. 26 at 3, ¶ 10.
Jeffrey Mullings, a Meat Department Manager for Safeway at a different store location (Store Number 1449), filled in for Plaintiff at Plaintiff's store (Store Number 3521) in early May of 2015. ECF No. 24 at ¶ 5. According to Mr. Mullings:
ECF No. 24 at ¶¶ 6-8.
In early May, 2015, Plaintiff arrived late for work
ECF No. 30-2 at 3.
In early May 2015, Vice President of Safeway, Dan Valenzuela, visited Plaintiff's department and was upset and not pleased with the condition. ECF No. 23-1 at 32-34. After the visit, Safeway management began drafting a Corrective Action Notice to deliver to Plaintiff. ECF Nos. 25 at 4; 25-2. According to the Corrective Action Notice, the meat rack was "way below gold standards" on May 6, 2015 when "our president, Dan Valenzuela paid us a visit," including violations of "proper handling of meat products, quality of wrapping, [and] proper trimming" resulting in "lost revenues, high shrink, [and] loss of customer confidence." ECF No. 25-2 at 2.
According to another Corrective Action Notice, a May 11, 2015 audit "found several critical violations", including "no dates on product in the meat cooler"; no country of origin (COOL) information on case products in the meat cooler; "[p]re-trim violations; "[n]o stickers on several Hamburger meat packages"; [b]oxes on the floor in the Meat cooler"; and the "[w]hole Department not on schematics." ECF No. 25-4 at 2. These failures violated Safeway policies, ECF Nos. 25 at ¶¶ 15-16; 25-4 at 2, and Defendant explains that failure to abide by COOL practices could result in negative surveillance audits with the U.S. Agriculture Department. ECF No. 25 at ¶ 16. According to the Notice, the impact of the violations included "lost revenues, high shrink, loss of customer confidence, potential COOL fines, [and] health department fines." ECF No. 25-4 at 2.
"A few days after" Gibassier suspended Plaintiff, Plaintiff applied for medical leave of absence so he could attend an alcohol detoxification and treatment program. ECF No. 23-1 at 41. Plaintiff requested a leave of absence beginning May 11, 2015 and ending on July 2, 2015. ECF Nos. 27-1 at 118; 23-1 at 85. Safeway provisionally granted Plaintiff's request on May 18, 2015, ECF No. 23-1 at 87, and formally granted Plaintiff's request for medical leave on June 19, 2015, ECF No. 23-1 at 89.
Plaintiff planned on going to an alcohol rehabilitation program immediately, but was not able to get in until July 2, 2015; Plaintiff completed the alcohol rehabilitation program by the end of July, 2015, but his doctor did not release him to go back to work until November 4. ECF No. 27-1 at 118. Pursuant to the doctor's orders, Plaintiff requested an extended leave of absence by a couple of months. ECF Nos. 23-1 at 44; 25-8. Notably:
Plaintiff contends he was terminated on July 29, 2015, because he "had contacted Peggy to come back to work and [he] wasn't being put back to work." ECF No. 27-1 at 119. "Peggy" is a union representative, not a Safeway employee. ECF No. 27-1 at 119. Plaintiff admits he was not medically cleared to go back to work until November and testified that, although the doctor did not release him, "[h]
Plaintiff later worked with his union and Safeway for a planned return to work in November, 2015. However, Defendant did not then have an open meat department manager position and the Collective Bargaining Agreement between Safeway and its union employees (including Defendant) would not allow Plaintiff to "bump" another meat department manager out of position; rather, the union and Safeway reached an agreement that Plaintiff would return as a meat cutter. ECF Nos. 25 at 7, ¶ 22; 25-12.
According to Mr. Mullings, he was informed that Plaintiff would be transferring to his store. Mr. Mullings testified he was "excited about the prospect of [Plaintiff] working in my department because [Plaintiff] was experienced and [Mr. Mullings] was planning on taking vacation time." ECF No. 24 at 3, ¶ 11. Mr. Mullings recalled the following:
ECF No. 24 at 3, ¶¶ 12-14. According to Plaintiff, Mr. Mullings told Plaintiff that he "would be highly scrutinized" and that Mr. Mullings would "write [Plaintiff] up for corrective actions at every point in time he could." ECF No. 27-1 at 116. Mr. Mullings denies this occurred. ECF No. 24 at 3-4, ¶ 15.
Defendant deemed Plaintiff's three consecutive no-shows to be a voluntary resignation pursuant to Safeway policy and administratively terminated his employment on November 25, 2015. ECF No. 22 at 4-5, ¶ 6.
Plaintiff filed suit in the Douglas County Superior Court on September 19, 2016 and Defendant removed the matter to this Court based on diversity jurisdiction, 28 U.S.C. § 1332(a). ECF No. 1.
Defendant argues that Plaintiff's claims fail as a matter of law. ECF No. 21 at 6-7. For the reasons discussed below, the Court agrees.
Plaintiff alleges that his disability was a substantial factor in his termination and that Defendant failed to accommodate Plaintiff's disability. Plaintiff argues Defendant is therefore liable for discrimination under the Washington Law Against Discrimination (WLAD).
The WLAD "makes it an unfair practice for any employer . . . [t]o discharge or bar any person from employment because of . . . the presence of any sensory, mental, or physical disability." Brownfield v. City of Yakima, 178 Wn.App. 850, 873 (2014) (quoting Wash. Rev. Code § 49.60.180). "An employee claiming discrimination must first prove a prima facie case of discrimination and, if he or she does so, then the burden shifts to the employer to present evidence suggesting a nondiscriminatory reason for [the termination]." Id. (quoting Swinford v. Russ Dunmire Oldsmobile, Inc., 82 Wn.App. 401, 413-14 (1996)). "If the plaintiff establishes a prima facie case, the burden of production—but not persuasion—then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action." Villiarimo, 281 F.3d at 1062 (citing McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). "If the employer does so, the plaintiff must show that the articulated reason is pretextual `either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Chuang v. University of California Davis, 225 F.3d 1115, 1123 (9th Cir. 2000) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981))).
To avoid summary judgment, a plaintiff "must do more than establish a prima facie case and deny the credibility of the [defendant's] witnesses." Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996). "A plaintiff cannot create a pretext issue without some evidence that the articulated reason for the employment decision is unworthy of belief." Brownfield, 178 Wash. App. at 874 (quoting Kuyper v. Dep't of Wildlife, 79 Wn.App. 732 (1995)). Rather, the plaintiff must produce "specific, substantial evidence of pretext." Id.(citation omitted). "To do this, a plaintiff must show, for example, that the reason has no basis in fact, it was not really a motivating factor for the decision, it lacks a temporal connection to the decision or was not a motivating factor in employment decisions for other employees in the same circumstances." Id. (quoting Kuyper, 79 Wash.App at 738-39). "Although a plaintiff may rely on circumstantial evidence to show pretext, such evidence must be both specific and substantial." Villiarimo, 281 F.3d at 1062 (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.1998)).
First, Plaintiff has not presented a prima facia case of discrimination. "The elements of a prima facie case of disparate treatment disability discrimination are that the employee was: [1] disabled, [2] subject to an adverse employment action, [3] doing satisfactory work, and [4] discharged under circumstances that raise a reasonable inference of unlawful discrimination." Brownfield, 178 Wash. App. at 873. (quoting Callahan v. Walla Walla Hous. Auth., 126 Wn.App. 812, 819-20 (2005)). Plaintiff has failed to demonstrate he was doing satisfactory work. Indeed, the evidence in the record clearly demonstrates Plaintiff was not fulfilling the standards required by Safeway, to say the least, before taking leave, and then he failed to even show up for work upon return from leave.
Second, Defendant has presented ample evidence demonstrating its decision to offer Plaintiff a different position and, later, to terminate Plaintiff was based on valid work-place concerns, and Plaintiff has failed to show the reason is pretextual. It is undisputed that Defendant put Plaintiff in the position as a meat cutter because the meat department manager position was no longer open and Safeway could not "bump" the meat department manager to give Plaintiff the position. Further, it is undisputed that Defendant terminated Plaintiff pursuant to store policy (three noshows is a voluntary quit) after Plaintiff chose to not show up for three shifts in a row, telling his meat department manager he was not coming back upon advice of counsel.
Plaintiff has presented no evidence that would persuade the court a discriminatory reason more likely motivated the employer. Plaintiff has also failed to provide any evidence that the employer's proffered explanation is unworthy of credence. Notably, Plaintiff claims he was "unjustly terminated for putting [himself] into rehab[,]" ECF No. 27-1 at 117, but he admitted that he had no facts to support the contention, ECF No. 27-1 at 119-20. Although the complained of actions took place after Plaintiff took leave to attend alcohol rehabilitation, (1) the position Plaintiff wanted was not open because Plaintiff left for six months and Safeway had to fill the vacant position and (2) Plaintiff was terminated after not returning to work, which happened after he took leave, so the proximity of time is incidental and fully explained. Further, although Plaintiff asserts he would be subjected to scrutiny and would be written up if he made a mistake, this is a reasonable condition of employment given Plaintiff's past poor performance and Defendant's legitimate interest in maintaining its policies, especially health and safety issues in the meat department. Moreover, increased scrutiny is not an adverse action. See Kortan v. California Youth Auth., 217 F.3d 1104, 1112-13 (9th Cir. 2000) (finding there was no adverse action taken despite the plaintiff's claim of "increased criticism" at the workplace).
While Plaintiff asserts he tried to return to his position in late July and Defendant did not let him, see ECF Nos. 1-1 at 4, ¶ 2.4; 27-1 at 119, it is undisputed that Plaintiff was not cleared to return back to work by his doctor until November. Indeed, as noted above, Plaintiff's doctor wrote a letter to Plaintiff dated July 6, 2015 "confirm[ing] that [Plaintiff's] disability is being extended for at least the next two months as [Plaintiff is] just now being admitted for inpatient treatment of alcoholism." ECF No. 25-8. In a letter from Defendant to Plaintiff dated July 14, Defendant informed Plaintiff that his FMLA leave ended August 4, 2015 and that Defendant approved of Plaintiff's leave of absence until September 3, 2015. ECF No. 25-9 at 2. These letters directly contradict Plaintiff's claim that he was able and willing to return to work at the end of July, yet Defendant did not let him. Moreover, the Court does not ignore the fact that Plaintiff claims he could have convinced his doctor to release him for work any day, but neither the Plaintiff nor his doctor did so. ECF No. 27-1 at 119. In any event, Plaintiff has not presented any evidence Safeway would not let him return to work in July; the only thing Plaintiff points to is his own deposition where he mentions he spoke with a union representative, not Safeway. This settles the issue as to whether Plaintiff attempted to return to work in July.
Plaintiff otherwise argues that Defendant treated other similarly situated employees differently than Plaintiff, but Plaintiff does not point to anyone that deliberately declined to show up for work three times without being terminated. Nor does Plaintiff point to any employee with such drastic failures to abide by company policies.
"[E]mployers have an affirmative obligation to reasonably accommodate the sensory, mental, or physical limitations of [] employees unless the employer can demonstrate that the accommodation would impose an undue hardship on the conduct of the employer's business." Doe v. Boeing Co., 121 Wn.2d 8, 18 (1993) (citing WAC 162-22-080). "[T]he scope of an employer's duty to accommodate an employee's condition is limited to those steps reasonably necessary to enable the employee to perform his or her job." Id. (citation omitted).
Plaintiff does not identify any request Defendant actually denied. Rather, it is undisputed that Defendant fulfilled every request to accommodate Plaintiff's alleged disability. Defendant granted every leave request and allowed Plaintiff to return to work after taking a six-month leave of absence. While Plaintiff wanted his position as meat department manager, this request was not a request to accommodate his disability, as there is nothing that precluded Plaintiff from working as a meat cutter. Defendant necessarily filled the meat department manager position while Plaintiff was on extended leave, leave that exceeded the 12-week FMLA grace period, and was prohibited from "bumping" the manager pursuant to the union contract.
Defendant has not presented any evidence that Defendant discriminated against Plaintiff because of his disability or otherwise failed to accommodate his disability. Defendant is entitled to summary judgment on this issue.
Plaintiff claims Defendant is liable under the Washington Family Leave Act because Defendant did not return Plaintiff to his original position upon returning to work and Defendant retaliated against Plaintiff for taking leave.
"The WFLA is patterned on and construed in accordance with the FMLA." Shelton v. Boeing Co., 702 F. App'
Under the FMLA, although employees (generally) have a right to be returned to their position upon returning to work, this is only available if the employee returns to work within the allotted 12 weeks for medical leave, and it is undisputed Plaintiff did not return to work until well-beyond the running of the 12 weeks. Hibbs v. Dep't of Human Resources, 152 Fed. App'x 648, 649 (9th Cir. 2005) ("The protections of the FMLA—entitling an employee to return to his job as if he had never left, . . . do not survive the expiration of the twelve-week FMLA period."). Plaintiff claims he attempted to return before the 12 week period ended in late July, but at this time he was in the midst of a 2-month extension of leave pursuant to his doctor's order (dated 7/6/2015), following his own request for leave (approved 6/17/2015), as discussed above.
"[A]n employee may prevail on a claim that an employer interfered with her rights by terminating her in violation of FMLA by showing, `by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her.'" Xin Liu, 347 F.3d at 1135-36 (quoting Bachelder, 259 F.3d at 1125). The Ninth Circuit has expressly held that the McDonnel Douglas burden shifting approach (applied to disability discrimination claims) does not apply to FMLA interference claims.
A plaintiff "can prove this claim, as one might any ordinary statutory claim, by using either direct or circumstantial evidence, or both." Xin Liu, 347 F.3d at 1136 (quoting Bachelder, 259 F.3d at 1125). For example, in Bachelder, the employer's stated reason for termination — her absences — was direct evidence the absences (assuming they were absences covered by the FMLA) were a "negative factor" in the decision to terminate the employee. In Xin Liu, on the other hand, the Ninth Circuit found there was sufficient indirect evidence to support the plaintiff's claim that her employer considered her leave as a "negative factor" in her termination. Id. at 1137; see also Allison v. Hous. Auth. of City of Seattle, 118 Wn.2d 79, 97-98 (1991).
In Xin Liu, the plaintiff worked for Amway as a scientist researching and developing plant concentrates. 347 F.3d at 1130. Liu went on maternity leave, and her supervisor had to work on nights and weekends to "pick up the slack". Id. A few weeks before her planned return to work, her supervisor called her to confirm her return date; Liu asked for an extension and her supervisor denied her request immediately. Id. A week later, the supervisor again demanded that Liu provide a firm return date. Id. Liu asked for an extension again and her supervisor ultimately agreed to a shorter extension than she requested. Id. Liu again requested an extension of leave to help her terminally ill father in China. Her supervisor refused repeatedly, but eventually gave Liu a one-week extension after Liu contacted the Human Resources Department. Id. at 1130-31. Shortly before Liu had planned to leave for China, her supervisor requested she visit the company for her annual performance evaluation. Id. at 1131. At the meeting, her supervisor told her he was assigning her primary project to another employee and that the company was downsizing. Id. The supervisor gave her a score 19% lower than her previous evaluation she had received six months earlier. Id.
Id. at 1131 (footnote omitted).
The Ninth Circuit reviewed the evidence in detail, finding there was sufficient evidence for a jury to find Liu taking leave was a factor in her termination:
Id. at 1136-37 (footnote omitted; citations altered).
Here, as discussed above, Plaintiff has not presented any evidence that Defendant considered Plaintiff's taking of leave a "negative factor" in assigning Plaintiff to the meat cutter position and then terminating him after he failed to show up for work. Unlike in Xin Liu, there is nothing in the record showing Defendant or any of its agents complained about Plaintiff taking leave. While Plaintiff was written up for poor performance, this occurred before Plaintiff requested leave and the evidence supports the legitimacy of the evaluation(s). Further, unlike in Xin Liu, the evaluations were not based on subjective categories, but rather reflected the objective factual findings of his performance. Finally, although Plaintiff was assigned a different position and terminated after taking leave, it is undisputed that Defendant could not return Plaintiff to his original position because that position had been filled (and they could not "bump" the person holding the position pursuant to an agreement with the union) and Defendant was terminated after he failed to show up for work. Plaintiff asserts he was told that he would be highly scrutinized and written up, but this scrutiny and attention to policies is clearly reasonable in light of Plaintiff's past performance. Moreover, mere threats of increased criticism do not constitute an adverse employment action. See Kortan, 217 F.3d at 1112-13 (finding there was no adverse action taken despite the plaintiff's claim of "increased criticism" at the workplace).
This is not a case where there is at least "thin" evidence of an improper motive. See Allison v. Hous. Auth. of City of Seattle, 118 Wash. 2d at 97-98 ("thin, but sufficient testimony" where employer made remarks about "little old ladies", became hostile towards the plaintiff after learning her true age, and gave the plaintiff an allegedly unwarranted reprimand, among other things). Rather, this case is more like Shelton v. Boeing, 702 F. App'x at 568, where there is simply no evidence to support Plaintiff's claim of improper motive. In Shelton v. Boeing, the Ninth Circuit affirmed the district court's grant of summary judgment to the defendant, explaining no reasonable jury could find for the plaintiff where:
A claim for wrongful discharge is a "narrow exception" to Washington's general rule of employment at will. Martin v. Gonzaga University, ___Wash.2d ___, 2018 WL 4355364, *4 (Sept. 13, 2018). "[T]o prevail on a cause of action, a plaintiff employee must demonstrate that his or her "discharge may have been motivated by reasons that contravene a clear mandate of public policy[,]" then, "the burden shifts to the employer to prove that the dismissal was for reasons other than those alleged by the employee." Id. (citing Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232-33 (1984). The tort for wrongful discharge in violation of public policy has generally been limited to four scenarios: "(1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation, such as serving jury duty; (3) where employees are fired for exercising a legal right or privilege, such as filing workers' compensation claims; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistle-blowing." Id. (citing Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 936, 913 P.2d 377 (1996)). Only when a claim does not fall within one of these four categories may the more refined Perritt analysis be applied. See Martin, 2018 WL 4355364, *4 (citing, inter alia, Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 277-78, 287 (2015) ("We note that in other instances, when the facts do not fit neatly into one of the four abovedescribed categories, a more refined analysis may be necessary. In those circumstances, the courts should look to the four-part Perritt framework for guidance. But that guidance is unnecessary here."). The Perritt test has four factors: "(1) The plaintiffs must prove the existence of a clear public policy (the clarity element). (2) The plaintiffs must prove that discouraging the conduct in which they engaged would jeopardize the public policy (the jeopardy element). (3) The plaintiffs must prove that the public-policy-linked conduct caused the dismissal (the causation element). (4) The defendant must not be able to offer an overriding justification for the dismissal (the absence of justification element)." Martin, 2018 WL 4355364, *4 (citing Gardner, 128 Wash.2d at 936 and HENRY H. PERRITT JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES (1991)).
Plaintiff argues the "WLAD expresses a clear policy against discharge from employment because of discrimination." ECF No. 28 at 16. However, as discussed above, Plaintiff has not presented any evidence supporting his claim of discrimination/retaliation/interference, however phrased. As such, even if the Court were to adopt Plaintiff's theory of liability, Plaintiff has not demonstrated an adverse action was taken with an improper motive and Defendant has clearly shown there was an "overriding justification for the dismissal" in any event.
Defendant Safeway Inc.'s Motion for Summary Judgment (ECF No. 21) is
The District Court Clerk is directed to
