Daryle Washington v. Recology, No. 3:2014cv05083 - Document 56 (N.D. Cal. 2015)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION FOR SUMMARY JUDGMENT by Hon. William Alsup granting in part and denying in part 39 Motion for Summary Judgment.(whalc1, COURT STAFF) (Filed on 12/22/2015)
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Daryle Washington v. Recology Doc. 56 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 DARYLE WASHINGTON, No. C 14-05083 WHA 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 Plaintiff, v. RECOLOGY SAN FRANCISCO, Defendant. / ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT INTRODUCTION In this employment-harassment action, defendant moves for summary judgment on all 18 claims or, in the alternative, partial summary judgment. To the extent stated below, defendant’s 19 motion is GRANTED IN PART AND DENIED IN PART. Specifically, summary judgment is 20 DENIED as to the claims that plaintiff did not voluntarily dismiss. 21 STATEMENT 22 Since 2013, plaintiff Daryle Washington, an African American man, worked for 23 defendant Recology San Francisco as a material handler. Recology offered waste-management 24 and disposal services to homes and businesses. Plaintiff’s job duties included sorting through 25 garbage, recyclables, and construction waste by removing materials from sorting lines and 26 sending them down designated chutes (Scott Decl. ¶ 6; Jamison Decl. ¶ 3; Damele Decl. ¶ 2). 27 28 On December 10, 2013, plaintiff saw a fellow material handler, Jon Peralta, who is Caucasian, remove a noose from the sorting line. He then saw Peralta place the noose on the backpack of another co-worker Greg Foster, who, like plaintiff, is African American Dockets.Justia.com 1 (Washington Decl. ¶ 2). As Peralta approached Foster’s backpack, plaintiff witnessed him 2 tighten the noose “as if he was putting it on someone’s neck” (Washington Dep. at 147). 3 Foster, who also witnessed the incident, saw Peralta walk away from his backpack laughing 4 (Foster Decl. ¶ 1). 5 Plaintiff immediately filed a report to his supervisor, Rodney Berry, regarding this 6 incident. After hearing what happened, Berry took Peralta off the sorting line and informed 7 his own superior, Joseph Damele, of the incident (Washington Decl. ¶ 3; Damele Decl. ¶ 6). 8 9 The following day, December 11, Damele spoke with Peralta and suspended him without pay pending an investigation. Damele also spoke with Foster and plaintiff to further understand what happened the day before and informed them that Recology had begun 11 For the Northern District of California United States District Court 10 investigating this matter. Varessa Scott, the human resources manager, led the investigation 12 (Damele Decl., ¶ 9, Exh. A at 6; Scott Decl. ¶ 10). 13 The morning after the incident, Scott spoke with plaintiff regarding the incident and 14 advised him that Recology took matters such as this seriously. Next, Scott interviewed Foster, 15 who stated that he felt upset with Peralta, but that he had not had any previous altercations 16 with Peralta. Scott also interviewed Peralta, who informed her that the workers regularly 17 joked around with each other on the sorting line and that he did not intend to offend Foster. 18 Peralta acknowledged his mistake to Scott and apologized to Foster (Scott Decl. ¶¶ 12, 14; 19 Foster Decl. ¶ 3). 20 21 22 Damele allowed Foster to take paid time off as needed to recover from any discomfort caused by the incident — Foster took four days off (Scott Decl. ¶ 13). Following Scott’s investigation, Damele ultimately decided to suspend Peralta for 23 five days without pay. In making this decision, Damele considered the seriousness of Peralta’s 24 actions, the fact that he had no prior disciplinary history, and the terms of Recology’s collective 25 bargaining agreement with Peralta’s union (id. at ¶ 15; Damele Decl. ¶ 10). 26 On December 13, Damele met with the employees who worked on the same shift as 27 Peralta. Damele emphasized Recology’s “zero tolerance for harassment” and reviewed ways 28 employees could bring concerns to his attention and to the attention of the human resources 2 1 department (Damele Decl. ¶ 11). Recology’s policy on harassment stated that any employee 2 “engaged in prohibited harassment is subject to disciplinary action, up to and including 3 termination of employment” (Jamison Decl., Exh. B at 30). Damele also informed employees 4 that Peralta had been suspended. Plaintiff did not attend the meeting, but Damele later saw 5 plaintiff in the break room and repeated to him the same information about Peralta’s suspension 6 (Damele Decl. ¶ 11). 7 When Peralta returned from suspension, he was assigned to a position on the sorting line 8 right next to plaintiff. This change made plaintiff uncomfortable, so he requested to be moved 9 to another location away from Peralta. One of plaintiff’s managers (the identity of this manager is not stated in the record) informed plaintiff that nothing could be done about Peralta’s 11 For the Northern District of California United States District Court 10 assignment at that time. Plaintiff claims he began to have trouble falling asleep and started 12 feeling depressed as a result of working directly next to Peralta (Washington Decl. ¶¶ 5–9). 13 On January 3, Peralta removed a copy of Jet — a “magazine designated toward 14 African American patrons” — from the sorting line and “tossed” it between Foster and another 15 co-worker David Denson (Scott Decl. ¶ 16). Plaintiff did not witness this incident himself. 16 He only became aware it had occurred later that day (Damele Decl., Exh. B at 8; Washington 17 Dep. at 202). 18 On January 7, Denson reported the magazine incident to Damele, who in turn escalated 19 the complaint to Scott. On January 13, Damele arranged to suspend Peralta without pay 20 pending Scott’s investigation. Scott then began another investigation. It appeared to Scott that 21 Peralta did not understand the gravity of his actions. Damele reaffirmed Scott’s opinion and 22 ultimately decided to suspend Peralta without pay again (Damele Decl., ¶ 12, Exh. B at 8; Scott 23 Decl. ¶¶ 16–17). 24 On January 23, a meeting occurred between Damele, Scott, union representatives, and 25 Peralta to review a grievance filed by Peralta’s union concerning his suspensions. Damele 26 refused to reconsider Peralta’s suspension. The parties agreed to suspended Peralta for eleven 27 days without pay. Recology also required Peralta to make a public apology to his co-workers 28 and to attend sensitivity training through Recology’s employee-assistance program. In addition, 3 1 Recology formally warned Peralta that “any other such occurrence during [his] employment 2 with Recology [would] result in immediate termination of [his] employment” (Damele Decl., 3 Exh. D at 13). Recology reinstated Peralta’s employment on January 28, 2014. Since then, 4 Peralta has not been the subject of any further complaints or disciplinary actions (Scott Decl. ¶¶ 5 18–20; Damele Decl. ¶ 14; Foster Decl. ¶ 6). 6 In January 2014, plaintiff suffered a workplace injury. To accommodate plaintiff’s 7 injury he was reassigned to a different area of the facility, with a different shift time, and 8 physically apart from Peralta. From March 2014 through June 2014, plaintiff took time off due 9 to his reported injury. Plaintiff resumed his work in June 2014, but Recology allowed him to work in a different assignment away from Peralta in light of his stated discomfort around 11 For the Northern District of California United States District Court 10 Peralta. Plaintiff has been absent from work continuously due to his reported injury since 12 September 2014 (Scott Decl. ¶¶ 22–24). 13 In November 2014, plaintiff commenced this action claiming: (1) racial harassment 14 in violation of the California Fair Employment and Housing Act, (2) failure to prevent racial 15 harassment in violation of the California Fair Employment and Housing Act, (3) racial 16 harassment in violation of Title VII of the Civil Rights Act of 1964, (4) failure to prevent 17 harassment in violation of Title VII of the Civil Rights Act of 1964, (5) negligence, and 18 (6) breach of the covenant of good faith and fair dealing. Plaintiff also sought compensatory 19 and punitive damages. Recology now moves for summary judgment on all claims. In 20 plaintiff’s brief in opposition to Recology’s motion, he abandoned his second, fourth, fifth, and 21 sixth claims along with his claim for punitive damages (Pl.’s Opp. at 10). Accordingly, 22 Recology’s motion for summary judgment as to those claims is GRANTED. The only remaining 23 claims are based on racial harassment in the form of a hostile work environment under FEHA 24 and Title VII. 25 26 27 28 This order follows full briefing and oral argument. ANALYSIS Plaintiff asserts racial-harassment claims under both Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act. “The analysis under FEHA is 4 1 identical to that under Title VII.” Davis v. California Dept. of Corrections and Rehab., 484 2 Fed. Appx. 124, 128 n.3 (9th Cir. 2012) (citing Brooks v. City of San Mateo, 229 F.3d 917, 923 3 (9th Cir. 2000); Beyda v. City of Los Angeles, 65 Cal. App. 4th 511, 516–17 (1998)). 4 An employer is liable for conduct giving rise to a hostile work environment if the (2) that the conduct was unwelcome, and (3) that the conduct was sufficiently severe or 7 pervasive to alter the conditions of the victim’s employment and create an intimidating, hostile, 8 offensive, or abusive working environment. See Pavon v. Swift Transportation Co., 192 F.3d 9 902, 908 (9th Cir. 1999). A plaintiff must show that his working environment was “both 10 objectively and subjectively offensive, one that a reasonable person would find hostile or 11 For the Northern District of California employee can show: (1) he was subjected to verbal or physical conduct of a harassing nature, 6 United States District Court 5 abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 12 524 U.S. 775, 787 (1998). 13 “[T]he objective severity of harassment should be judged from the perspective of a 14 reasonable person in the plaintiff’s position, considering all the circumstances.” Oncale v. 15 Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). Factors that may be considered 16 “include the frequency of the discriminatory conduct; its severity; whether it is physically 17 threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes 18 with an employee’s work performance.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 19 (1993). “The required level of severity or seriousness varies inversely with the pervasiveness or 20 frequency of the conduct.” Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 872 21 (9th Cir. 2001). 22 Here, plaintiff’s claim arises out of three instances of unwelcome conduct to support 23 his claim of a hostile work environment: (1) On December 10, 2013, Peralta, a Caucasian 24 employee, took an already-tied noose off the sorting line and placed it on another African 25 American co-worker’s backpack, (2) upon his return, Recology assigned Peralta to work 26 directly alongside our plaintiff, even though plaintiff told his supervisor he was disturbed by 27 28 5 1 Peralta’s conduct, and (3) on January 3, 2014, plaintiff heard that Peralta tossed a copy of Jet 2 magazine from the sorting line and “tossed” it between two other co-workers.1 3 Peralta had no prior disciplinary history and he had no prior problems with Foster (or 4 any other African American employee). Since January 2014, Peralta has not engaged in any 5 inappropriate workplace behavior (Damele Decl. ¶ 10; Scott Decl. ¶ 20; Foster Decl. ¶ 6). 6 Plaintiff has not presented any evidence of other conduct anywhere at Recology that could give 7 rise to a hostile work environment. 8 Nevertheless, the noose is one of the most vile symbols in American history, and it hostility inherent in a display of a noose cannot be overstated. Our court of appeals has not 11 For the Northern District of California recalls atrocious acts of violence committed against African Americans. The severity of the 10 United States District Court 9 addressed the objective severity of a display of a noose, however, in Vance v. S. Bell Tel. & Tel. 12 Co., 863 F.2d 1503, 1510 (11th Cir. 1989), the Eleventh Circuit held that two incidents 13 involving a noose placed directly above the plaintiff’s work station along with an allegedly 14 racially-charged disciplinary event and a verbal altercation with a co-worker constituted 15 sufficiently severe conduct to present a jury question, reversing the district court’s grant of 16 judgment notwithstanding the verdict. Our court of appeals has cited Vance twice, each time as 17 an example of conduct showing sufficient severity and pervasiveness to survive summary 18 judgment. See Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991); Woods v. Graphic 19 Communications, 925 F.2d 1195, 1201 (9th Cir. 1991). 20 On the other hand, Henry v. Regents of the University of California, 37 F. Supp. 3d 1067 21 (N.D. Cal. Feb. 24, 2014) (Chief Judge Phyllis Hamilton) appeal docketed, No. 14-15386 22 (9th Cir.), addressed a single incident involving a noose taken together with a supervisor’s 23 statement that the department was “not going to let a black man manage anybody.” That 24 decision noted: 25 The Ninth Circuit has held that “[i]f a single incident can ever suffice to support a hostile work environment claim, the incident 26 27 28 1 Recology points out that plaintiff did not personally witness this event and the he has not disclosed any witness that can personally testify to this occurrence. Nevertheless, this order will not rule out the possibility that plaintiff may be able to elicit admissible evidence of this second occurrence through cross examination of Recology’s witnesses. 6 1 2 must be extremely severe,” and a California court of appeals [sic] has similarly held, in a FEHA harassment case, that an incident “must be severe in the extreme and generally must include either physical violence or the threat thereof.” 3 Id. at 1086 (quoting Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir.2000); Herberg v. 4 California Institute of the Arts, 101 Cal. App. 4th 142, 151 (2002)). Because the plaintiff had 5 failed to provide evidence that the noose served as a threat of violence to him specifically (the 6 noose was taped to a box in a warehouse, not near the plaintiff’s work station), Henry held the 7 incident was not sufficiently severe to survive summary judgment. 8 Henry specifically distinguished Wilson v. New York City Department of 9 Transportation, 01-7398, 2005 WL 2385866, at *1 (S.D.N.Y. Sept. 28, 2005) (Judge Beryl A. 10 (E.D.N.Y 2011) (Judge Arthur D. Spatt), each of which denied summary judgment for the For the Northern District of California United States District Court Howell), and Smith v. Town of Hempstead Department of Sanitation, 798 F. Supp. 2d 443 11 12 defendants for claims relating to a single incident involving a noose. Both decisions, Henry 13 noted, involved nooses directed at the plaintiffs therein or at African-Americans as a whole. In 14 Wilson, the noose in question hung outside the plaintiff’s locker, and in Smith, the noose hung 15 in a central garage where all African American employees would pass. An appeal of the Henry 16 decision is currently pending. 17 It is true that Peralta did not display the noose in a manner specifically directed at our 18 plaintiff but instead placed the noose on Foster’s belongings. Nevertheless, plaintiff saw 19 Peralta place the noose on Foster’s belongings, and saw him tighten it as if around someone’s 20 neck. A jury may find that by directing a noose at a specific individual, Peralta communicated a 21 threat of violence to all African Americans in the workplace, including our plaintiff. Such a 22 threat of violence, particularly in light of the fact that Peralta resumed racially insensitive 23 conduct immediately after returning to work (albeit out of plaintiff’s presence) and the fact that 24 Peralta worked immediately next to our plaintiff upon his return, could have unreasonably 25 interfered with a reasonable African American man’s work performance. See Harris, 510 U.S. 26 at 23. A jury must decide. 27 Recology argues that even if a jury could conclude that a hostile work environment 28 existed, it cannot be held liable because it responded appropriately by taking prompt action to 7 1 discipline Peralta and remedy the situation, and in fact Peralta’s harassing conduct ceased after 2 his second suspension. Nevertheless, in considering an employer’s response to a hostile work 3 environment “we consider the overall picture.” Swenson v. Potter, 271 F.3d 1184, 1197 4 (9th Cir. 2001). Recology’s response may have ultimately been effective, but a jury could also 5 conclude that by placing Peralta directly adjacent to plaintiff on the sorting line just a week after 6 the noose incident, Recology exacerbated the hostility that Peralta had already injected into the 7 workplace. Indeed, our court of appeals has held: 8 9 11 Ellison, 924 F.2d at 883. At oral argument, counsel for Recology argued that union rules For the Northern District of California United States District Court 10 [I]n some cases the mere presence of an employee who has engaged in particularly severe or pervasive harassment can create a hostile working environment. To avoid liability under Title VII for failing to remedy a hostile work environment, employers may even have to remove employees form the workplace if their mere presence would render the working environment hostile. 12 dictated Peralta’s assignment, so this exacerbation was inevitable, however, Recology points to 13 no evidence in the record to support that position. A jury must determine whether Peralta’s 14 mere presence, particularly his immediate proximity to plaintiff, following the noose incident 15 combined with the Jet incident would have rendered the working environment hostile from the 16 perspective of a reasonable African American. 17 CONCLUSION 18 To the extent stated above, Recology San Francisco’s motion for summary judgment is 19 GRANTED IN PART AND DENIED IN PART. A jury trial is necessary to resolve plaintiff’s hostile 20 work environment claims. Plaintiff has voluntarily dismissed all other claims. 21 22 IT IS SO ORDERED. 23 24 Dated: December 22, 2015. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 25 26 27 28 8
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