Kuykendall v. Les Schwab Tire Centers of Washington Inc, No. 2:2020cv00154 - Document 81 (E.D. Wash. 2022)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART 54 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Signed by Judge Salvador Mendoza, Jr. (MRJ, Case Administrator)
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Kuykendall v. Les Schwab Tire Centers of Washington Inc Case 2:20-cv-00154-SMJ ECF No. 81 Doc. 81 filed 04/25/22 PageID.1227 Page 1 of 24 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Apr 25, 2022 1 SEAN F. MCAVOY, CLERK 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 4 DOUGLAS KUYKENDALL, No. 2:20-cv-00154-SMJ 5 Plaintiff, 6 v. 7 8 LES SCHWAB TIRE CENTERS OF WASHINGTON, INC., 9 Defendant. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 Before the Court is Defendant’s Motion for Summary Judgment, ECF No. 11 54. This matter involves several discrimination or retaliation claims under both 12 federal and Washington state law. Defendant moves for summary judgment on each 13 of Plaintiff’s claims, arguing that Plaintiff cannot show a genuine dispute of 14 material fact on any claim. Having reviewed the relevant pleadings and the 15 materials submitted by the parties, the Court is fully informed and grants the motion 16 in part and denies it in part. Because Plaintiff cannot meet his burden to show a 17 material dispute regarding his age discrimination claim, the Court grants Defendant 18 summary judgment on this claim only. Defendant’s motion is otherwise denied. 19 // 20 ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 1 Dockets.Justia.com Case 2:20-cv-00154-SMJ ECF No. 81 PageID.1228 Page 2 of 24 BACKGROUND 1 2 filed 04/25/22 A. Plaintiff’s Employment with Defendant Les Schwab 3 Defendant Les Schwab Tire Centers of America (“Defendant”) is a national 4 tire retail company. Defendant hired Plaintiff Douglass Kuykendall (“Plaintiff”) in 5 March of 1999. After approximately two years performing retail customer service, 6 Plaintiff transferred to Defendant’s “retread shop” 1 in Spokane, Washington— 7 where he worked until his termination in October of 2019. Defendant’s retread 8 shops are commonly referred to as “More Mile Shops.” During his tenure at the 9 Spokane More Mile Shop, Plaintiff was responsible for a variety of tasks— 10 including tire inspection, repair, curing, and painting, but generally referred to 11 himself as a production worker. 12 B. Plaintiff’s Workers’ Compensation and Medical Expense Claims 13 During his employment, Plaintiff filed at least two claims for workplace 14 injuries. His first workplace injury (carpal tunnel syndrome) occurred in 2002. Due 15 to this injury, Plaintiff received time loss benefits and medical expense benefits. 16 Upon his return to work, Defendant provided Plaintiff with light duty assignment. 17 Years later, in November of 2018, Plaintiff sustained a workplace lumbar disc 18 herniation, for which he received the same benefits. This injury caused Plaintiff to 19 1 20 A retread shop is a manufacturing site where employees replace worn treads on commercial tires. Retread shops are in a separate department from Defendant’s retail stores. ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 2 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1229 Page 3 of 24 1 take medical leave for approximately seven months.2 In total, Plaintiff received 2 $56,519.53 in time loss benefits and medical expenses for this injury. He returned 3 to work in August of 2019 and was again assigned light duty work. Plaintiff admits 4 that upon his return to work and light duty assignment, he was not subject to any 5 adverse consequences for having filed the workers’ compensation claim. He was 6 released to full duty work in either September or October of 2019. 7 While employed, Plaintiff and his children received medical benefits through 8 Defendant’s policy. Plaintiff’s daughter suffers from Crohn’s disease, a chronic 9 condition she was diagnosed with in January of 2017. This ailment required that 10 Plaintiff’s daughter take regular shots of Humira—a drug that potentially costs up 11 to $9,000 a week. In total, between 2015 and 2019, Defendant paid $104,027.30 12 toward Plaintiff’s and his family’s medical expenses. This amount was nearly twice 13 the amount of expenses paid for the next highest claimant. 14 C. Defendant’s Expense Tracking 15 Defendant admittedly pays a third-party administrator $30,000 per year to 16 track the Company’s high-cost claimants and benefit expenses. It is undisputed that 17 2 18 19 20 When employees take medical leave, they are placed on Defendant’s “ADA list” until they return to work. While an employee is on leave, Defendant’s committee meets to determine whether continuing the leave is a reasonable accommodation. It is undisputed that the entirety of Plaintiff’s medical leave for his back injury was approved without incident. It is also undisputed that Plaintiff was placed on Defendant’s ADA list at some point and was removed from the list upon his return to work. ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 3 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1230 Page 4 of 24 1 Humira, the drug Plaintiff’s daughter required, is one of the medical expenses 2 Defendant pays the third-party administrator to track. It is also undisputed that 3 Plaintiff is considered a “high cost claimant” because “his and/or his families’ 4 medical expenses exceed[ed] $50,000 [per] year.” Meanwhile, in general, 5 Defendant’s retirement expenses rose by 54 percent in 2017, and its medical, 6 prescription, dental, and vision expenses increased by 7 percent. 7 D. Defendant’s Policies 8 At all material times, Defendant maintained non-discrimination, non- 9 harassment, and non-retaliation policies. Defendant also maintained a Code of 10 Conduct (“Code”) during Plaintiff’s employment, which generally required all 11 employees to act with honesty, integrity, and respect. The Code also provided that 12 “[t]heft, sale, or bartering (trading for other items of value) of any Les Schwab 13 property regardless of value is prohibited.” It is undisputed that Plaintiff understood 14 he was expected to act consistent with the Code and be honest and forthright in his 15 dealings with the company. 16 E. Supervision structure 17 At all relevant times, Plaintiff was supervised by John Merriott, who was 18 supervised by Corey Adamson. Mr. Adamson reported to Larry Gerke, the General 19 20 ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 4 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1231 Page 5 of 24 1 Manager of Prineville operations. Mr. Gerke reported to Ken Edwards, 3 the Vice 2 President of the Supply Chain. 3 F. Closure of the Spokane More Mile Shop and the missing air compressor 4 On September 23, 2019, Mr. Merriott informed the employees of the Spokane 5 More Mile Shop that the Shop would be closing, and management would be visiting 6 the Shop within the week to discuss the decision. Three days later, management 7 announced the closure and informed the employees that it was consolidating its 8 retreading operations to the production center in Prineville, Oregon. Though all 9 employment at the Spokane More Mile Shop was scheduled to end on October 31, 10 2019, Defendant encouraged employees interested in staying with the company to 11 apply at a different location. 12 Several weeks before the scheduled closure, on October 4, 2019, an 13 unidentified employee reported that another employee had loaded a company air 14 compressor onto his vehicle at the Spokane More Mile Shop and took it off the 15 property. Several days later, Mr. Gerke and Mr. Adamson initiated an in-person 16 investigation at the Shop and interviewed five employees, including Plaintiff and 17 Mr. Merriott. At some point during his interview, Mr. Merriott indicated that he was angry 18 19 3 20 Mr. Edwards’ job duties include analyzing company profit and loss. ECF No. 70 at 19. Though an uncontroversial assessment, Mr. Edwards agrees that cutting labor and benefit costs helps maximize Defendant’s profits. Id. at 20. ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 5 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1232 Page 6 of 24 1 about the Shop closing and admitted that he told Plaintiff to take the air compressor 2 and to “consider it part of his severance package.” Mr. Gerke and Mr. Adamson 3 then interviewed Plaintiff, who admitted that he loaded the air compressor onto his 4 vehicle using a company forklift and took it home, though he knew what he was 5 doing “wasn’t right.” Plaintiff indicated that as he was driving off the property, he 6 called Mr. Merriott and stated that he wanted to bring the air compressor back. 7 Plaintiff never did so. Another employee, Mr. Strandberg, advised that Mr. Merriott 8 asked if anyone wanted anything in the Shop; he also indicated that he saw the air 9 compressor in Plaintiff’s vehicle. Mr. Gerke and Mr. Adamson then interviewed 10 Plaintiff a second time. 11 G. Discipline 12 Upon concluding the investigation, Mr. Gerke suspended Plaintiff pending 13 the company’s determination of an appropriate discipline. Mr. Merriott, however, 14 was terminated for violating Defendant’s Policy Number 12, which is Defendant’s 15 Cash Control Policy that governs the control and custody of Defendant’s cash and 16 assets. When an employee is terminated for this policy violation, the employee is 17 ineligible for rehire. 18 Meanwhile, Mr. Gerke and Mr. Adamson shared the results of their 19 investigation with Mr. Edwards and Maureen Bedell, one of Defendant’s 20 compliance officers. ECF No. 70 at 13. Mr. Edwards elected to terminate Plaintiff’s ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 6 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1233 Page 7 of 24 1 employment, effective October 8, 2019.4 Upon review of Plaintiff’s involvement in 2 taking the air compressor, Mr. Edwards determined that Plaintiff violated 3 Defendant’s Code of Conduct, which prohibits theft of company property and 4 mandates employees act with honesty, integrity, and respect. A Code of Conduct 5 violation does not render the employee ineligible for rehire, but instead permits 6 rehire after some time. This difference in Plaintiff’s and Mr. Merriott’s disciplines 7 resulted from Mr. Edwards’ determination that Plaintiff’s discipline should be “less 8 severe” than Mr. Merriott’s. ECF No. 70 at 15 (“We felt that [Mr. Merriot’s] 9 termination should reach a different level than [Plaintiff’s]”). Ms. Beddell’s 10 testimony corroborates this determination, explaining that: I believe that Les Schwab had some discretion to – for some leniency, and I believe that [Plaintiff] was shown – [Plaintiff] was shown some leniency, and he was – he did commit the theft; the facts of the investigation determined that – but they wanted to give him an opportunity to come back to work. So I believe that’s what it was coded as a code of conduct. 11 12 13 14 Id. at 16. 15 On October 10, Mr. Fewkes and Mr. Horst, two management employees, met 16 with Plaintiff to discuss his termination. Mr. Fewkes advised Plaintiff that he had 17 violated Defendant’s Code of Conduct by taking the air compressor and that he was 18 19 20 4 But Mr. Edwards submits that in making the decision to terminate Plaintiff’s employment, he was unaware of Plaintiff’s medical needs and workers compensation benefits. He similarly claims to have been unaware of the medical needs of Plaintiff’s daughter. ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 7 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1234 Page 8 of 24 1 being terminated for this violation. Under Defendant’s policy, an employee rehired 2 within thirty days of termination retains any employee benefits, but employees 3 rehired after thirty days are treated as new employees and do not retain their former 4 benefits. ECF No. 54 at 6 (“A termination based on a Code of Conduct violation 5 allows an employee to be eligible for rehire in the future, while a termination based 6 on a Policy #12 violation renders an employee ineligible for rehire.”). 7 Plaintiff was informed that he was eligible for rehire on January 1, 2020, 8 more than thirty days after Plaintiff’s termination date. According to Mr. Edwards, 9 this rehire date was based on “two factors:” 10 11 12 One, he stole company property, and number two, there should be consequences for that. Therefore, by changing his eligibility, there was a financial impact to him about not being eligible for rehire. And I felt that that was the right message to send to the other employees that did not steal from the company and continued to work. 13 Id. at 17. During his termination meeting, Plaintiff stated that he would love to 14 return to work when eligible. after January 1, 2020. Id. 15 *** 16 Plaintiff initiated this instant action on April 15, 2020. ECF No. 1. His 17 Amended Complaint asserts both federal and state causes of action against 18 Defendant: (1) Workers’ Compensation Claim Retaliation under Washington state 19 law, (2) Associational Disability Discrimination under the American with 20 Disabilities Act (“ADA”), (3) Age and Disability Discrimination under the ADA ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 8 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1235 Page 9 of 24 1 and the Washington Law Against Discrimination, and (4) Employee Retirement 2 Income Security Act (“Act) Retaliation. ECF No. 6. Defendant now moves for 3 summary judgment on each claim. 4 LEGAL STANDARD 5 The Court must grant summary judgment if “the movant shows that there is 6 no genuine dispute as to any material fact and the movant is entitled to judgment as 7 a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the 8 outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 9 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if “the evidence 10 is such that a reasonable jury could return a verdict for the nonmoving party.” Id. 11 The moving party bears the initial burden of showing no genuine dispute of 12 material fact exists because a reasonable jury could not find in favor of the 13 nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986); 14 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 n.10, 587 15 (1986). If the moving party makes this showing, the nonmoving party then bears 16 the burden of showing a genuine dispute of material fact exists because reasonable 17 minds could differ on the result. See Anderson, 477 U.S. at 248–51; Matsushita 18 Elec. Indus., 475 U.S. at 586–87. 19 The nonmoving party may not rest upon the mere allegations or denials of its 20 pleading and must instead set forth specific facts, and point to substantial probative ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 9 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1236 Page 10 of 24 1 evidence, tending to support its case and showing a genuine issue requires trial 2 resolution. See Anderson, 477 U.S. at 248–49. The Court must enter summary 3 judgment against the nonmoving party if it fails to make a showing sufficient to 4 establish an element essential to its case and on which it would bear the burden of 5 proof at trial. See Celotex Corp., 477 U.S. at 322. 6 In ruling on a summary judgment motion, the Court must view the evidence 7 in the light most favorable to the nonmoving party. See Tolan v. Cotton, 572 U.S. 8 650, 657 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). 9 Thus, the Court must accept the nonmoving party’s evidence as true and draw all 10 reasonable inferences in its favor. See Anderson, 477 U.S. at 255. The Court may 11 not assess credibility or weigh evidence. See id. DISCUSSION 12 13 A. Defendant is not entitled to summary judgment on Plaintiff’s workers’ compensation retaliation claim. 14 Defendant moves for summary judgment on Plaintiff’s Washington state 15 workers’ compensation claim, submitting that no triable issue exists. The Court 16 disagrees. 17 1. Prima facie case 18 Under Wash. Rev. Code § 51.48.025(1), “[n]o employer may discharge or in 19 any manner discriminate against any employee because such employee has filed or 20 communicated to the employer an intent to file a claim for compensation or ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 10 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1237 Page 11 of 24 1 exercises any rights provided under this title.” But this provision does not prohibit 2 an employer from taking action against an employee for other, non-discriminatory 3 reasons. See id. To establish a prima facie case, Plaintiff must make the initial 4 showing that he: “(1) exercised his workers’ compensation rights, (2) was 5 terminated, and (3) a casual connection between the two exists.” Nettleton v. United 6 Parcel Serv., Inc., No. C19-1684-JCC, 2021 WL 197133, at *5 (W.D. Wash. Jan. 7 20, 2021); see also Anica v. Wal-Mart Stores, Inc., 84 P.3d 1231, 1237 (Wash. App. 8 2004). 9 To establish a causal connection, the plaintiff must show “the employer’s 10 motivation for the discharge was the employee’s exercise of or intent to exercise 11 the statutory rights.” Wilmot v. Kaiser Aluminum & Chem. Corp., 821 P.2d 18, 29 12 (Wash. 1991) (en banc). To that end, Washington courts “hold that a plaintiff may 13 establish the required case by showing that the worker filed a workers' 14 compensation claim, that the employer had knowledge of the claim, and that the 15 employee was discharged.” Employers, particularly sophisticated employers such 16 as Defendant, seldom openly announce a retaliatory motive, so plaintiffs often 17 resort to circumstantial evidence. Id. Importantly, a plaintiff need not prove his 18 employer’s sole motivation was retaliation, only that retaliation was a cause of the 19 termination. Id. 20 ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 11 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1238 Page 12 of 24 1 It is undisputed that Plaintiff exercised his workers’ compensation rights and 2 was subsequently terminated, establishing the first two prongs of a prima facie case. 3 The question then turns to whether Plaintiff can show a causal connection between 4 the two. As a beginning point, plaintiffs may establish causation by showing 5 temporal proximity between filing a workers’ compensation claim and their 6 termination. Id. Here, the Court notes there is sufficient temporal proximity between 7 Plaintiff’s 2018 workers’ compensation claim and his termination. As noted, 8 Plaintiff filed his workers’ compensation claim for his back injury in November of 9 2018. He then took medical leave from January of 2019 through August of 2019, 10 when he returned to light duty. Several months after his return to work, in October 11 of 2019, Plaintiff was terminated. While there is some length of time between 12 Plaintiff’s claim and his termination, this temporal proximity is at least some 13 evidence of causation, though this factor may prove more difficult for Plaintiff at 14 later stages. 15 The Court is also satisfied that a triable issue remains regarding whether 16 Defendant had knowledge of Plaintiff’s 2018 workers compensation claim. 17 Defendant’s position to the contrary is unavailing. Although Mr. Edwards submits 18 that “[i]n reaching my decision to terminate Mr. Kuykendall’s employment, I did 19 not consider—nor did I have personal knowledge of—the expenses incurred by Les 20 Schwab or its insurers in regard to Mr. Kuykendall’s health insurance plan, benefits, ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 12 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1239 Page 13 of 24 1 or workers compensation payments,” ECF No. 33 at 2, the question at this juncture 2 is only whether Mr. Edwards had knowledge that Plaintiff did in fact exercise his 3 workers’ compensation rights. Defendant does not argue that Mr. Edwards was 4 entirely ignorant of the fact that Plaintiff filed a workers’ compensation claim 5 resulting in medical leave, only that Mr. Edwards was not aware of the associated 6 expenses. In fact, it would be unsurprising if Mr. Edwards had noticed Plaintiff’s 7 seven-month absence, as such a lengthy absence is notable and apparent enough to 8 reach even higher-level management. 9 Further, in determining whether to terminate Plaintiff, Mr. Edwards spoke 10 with Ms. Bedell, who had access to Plaintiff’s file containing his workers’ 11 compensation and medical leave records. Without speculating as to the content of 12 their discussions, there is at least enough circumstantial evidence to create a triable 13 issue of fact regarding whether Mr. Edwards—the purported decisionmaker—knew 14 that Plaintiff had filed a workers’ compensation claim in 2018 resulting in several 15 months of medical leave. While Mr. Edwards denies having such discussions with 16 Ms. Beddell, his credibility is not for the Court to determine at this stage. 17 2. Burden shifting framework 18 “If the plaintiff presents a prima facie case, the burden shifts to the 19 employer.” Wilmot, 821 P.2d at 29. To satisfy its burden, Defendant must “articulate 20 a legitimate nonpretextual nonretaliatory reason for the discharge.” Id. It is ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 13 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1240 Page 14 of 24 1 undisputed that Plaintiff improperly removed company property that he was not 2 entitled to. On this point, Plaintiff has acknowledged that he took the air compressor 3 without the requisite permission and has further acknowledged that what he did was 4 “not right.” ECF No. 54 at 14. Defendant then conducted an appropriate 5 investigation and terminated Plaintiff at least in part because of these actions. The 6 Court is therefore satisfied that Defendant has met its burden to articulate a 7 legitimate nonretaliatory reason for Plaintiff’s discharge. 8 Once the employer meets its burden to articulate a legitimate basis for 9 discharge, “the burden shifts back to the plaintiff.” Wilmot, 118 Wash. 2d 46, 70, 10 821 P.2d 18, 30 (1991). To meet his burden at this third stage, Plaintiff must show 11 that Defendant’s articulated reason for discharge is pretextual. Id. In assessing 12 pretext, Washington courts use the “substantial” or “significant” factor test, under 13 which a plaintiff must prove that “retaliation was a substantial or important factor 14 motivating the discharge.” Id. at 71. To do so, plaintiffs may show that despite the 15 employer’s legitimate reason for termination, the plaintiff’s “pursuit of or intent to 16 pursue workers’ compensation benefits was nevertheless a substantial factor 17 motivating the employer to discharge the worker.” Id. at 73. In showing pretext, a 18 plaintiff need not set forth a “smoking gun;” rather, circumstantial and inference 19 evidence is sufficient. Renz v. Spokane Eye Clinic, P.S., 60 P.3d 106, 112 (Wash. 20 Ct. App. 2002). ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 14 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1241 Page 15 of 24 1 A plaintiff may discharge his burden through circumstantial evidence in 2 several ways. One such way is by presenting evidence of inconsistencies. Id. at 112 3 (“Conflicting reasons or evidence rebutting their accuracy or believability are 4 sufficient to create competing inferences.”). Here, Plaintiff has presented 5 cumulative evidence showing inconsistencies surrounding his termination and 6 rehire date. First, there is conflicting testimony regarding whether Mr. Edwards 7 consulted Mr. Gerke in making the decision to terminate Plaintiff. Mr. Edwards 8 testified that himself, Mr. Gerke, and others “were all part of the initial evaluation, 9 strategy, follow-up, options considered, and ultimately agreed on the course of 10 action for both [Plaintiff and Mr. Merriott].” ECF No. 72 at 27. Yet, Mr. Gerke 11 claimed he did not know who made the decision to terminate Plaintiff and denies 12 having consulted with Mr. Edwards. ECF No. 73 at 14–15. 13 Plaintiff has also shown several inconsistencies involving Ms. Lynch and 14 whether she was consulted about Plaintiff’s termination. As a human resources 15 employee, Ms. Lynch has access to Defendant’s ADA List.5 It appears undisputed 16 that Plaintiff was on the list at some point while on medical leave. Plaintiff has 17 shown several inconsistencies regarding whether Ms. Lynch was consulted before 18 Plaintiff was terminated, which is of particular concern to the Court. First, Ms. 19 5 20 Defendant’s ADA List is a written list of employees who are on more than five months of medical leave, though these employees are removed from the list upon their return to work. ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 15 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1242 Page 16 of 24 1 Lynch claims to have not discussed Plaintiff at any point with Mr. Edwards, ECF 2 No. 76 at 11, while Mr. Edwards claims the opposite, ECF No. 72 at 43. 3 Furthermore, Ms. Graham testified that Ms. Lynch was in fact consulted regarding 4 “the termination decision[]” for Plaintiff. ECF No. 74 at 11. While the Court will 5 not speculate as to whether Ms. Lynch discussed Plaintiff’s medical leave status 6 with Mr. Edwards, the Court cannot reconcile Ms. Lynch’s and Mr. Edward’s 7 competing statements regarding whether they discussed Plaintiff’s termination at 8 all.6 This inconsistency is at least some evidence of pretext. 9 Deviations from existing policy or practice are evidence of pretext. Wilmot, 10 118 Wash. 2d 46, 74, 821 P.2d 18, 32 (1991). According to Ms. Graham, Defendant 11 customarily uses an “employment advisory group”7 to determine employee 12 disciplinary action. ECF No. 74 at 6. Here, though, the employment advisory group 13 did not meet to discuss Plaintiff’s termination. See id. at 12. Plaintiff has also 14 proffered Ms. Graham’s testimony that when an employee is terminated for a code 15 16 17 18 19 20 6 The Court notes that Ms. Lynch serves on Defendant’s ADA List committee but does not have a “recollection of any specific discussions” involving Mr. Kuykendall while serving on the committee. ECF No. 76 at 9. Defendant describes this testimony as crucial. ECF No. 68 at 6. But this testimony does not have the impact Defendant suggests. Ms. Lynch did not testify that she did not have any discussions regarding Mr. Kuykendall’s status on the list, only that she does not recall “specific discussions.” ECF No. 76 at 9. 7 Defendant’s employee advisory group is “a group of senior leaders on the store operations side that typically are brought together to determine whether disciplinary action is appropriate….” ECF No. 74 at 6. ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 16 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1243 Page 17 of 24 1 of conduct violation, such as Plaintiff, the employee is immediately eligible for 2 rehire. ECF No. 74 at 25. Yet Defendant deviated from this usual practice in 3 terminating Plaintiff. As such, Plaintiff has proffered enough evidence to support a 4 reasonable inference of pretext, and this claim must survive summary judgment. 5 B. Defendant is not entitled to summary judgment on Plaintiff’s associational discrimination and ERISA retaliation claims. 6 Under the American with Disabilities Act (“ADA”), employers are 7 prohibited from “excluding or otherwise denying equal jobs or benefits to a 8 qualified individual because of the known disability of an individual with whom the 9 qualified individual is known to have a relationship or association.” 42 U.S.C. § 10 12112(b)(4). A prima facie case of associational discrimination requires the 11 following elements: “(1) the plaintiff was subjected to an adverse employment 12 action, (2) he was qualified for the job at that time, (3) his employer knew at the 13 time that he had a relative with a disability, and (4) the adverse employment action 14 occurred under circumstances that raised a reasonable inference that the disability 15 of the relative was a determining factor in the employer's decision.” Bukiri v. Lynch, 16 No. SACV15894JLSDFMX, 2015 WL 13358192, at *3 (C.D. Cal. Sept. 9, 2015). 17 If a plaintiff establishes a prima facie case and the defendant then articulates a 18 legitimate, nondiscriminatory reason for the adverse employment action, the burden 19 shifts to the plaintiff to show that this reason was a pretext for 20 unlawful associational discrimination.” Id. ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 17 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1244 Page 18 of 24 1 Similarly, Section 510 of the Employee Retirement Income Security Program 2 (“ERISA”) prohibits an employer from taking any adverse employment action 3 against an employee “for exercising any right to which he is entitled under the 4 provisions of an employee benefit plan....” 29 U.S.C. § 1140; see also Kimbro v. 5 Atl. Richfield Co., 889 F.2d 869, 880–81 (9th Cir. 1989). Unlawful retaliation 6 occurs when “(1) an employee participates in a statutorily protected activity, (2) an 7 adverse employment action is taken against him or her, and (3) a causal connection 8 existed between the two.” Kimbro, 889 F.2d 869, 881 (9th Cir. 1989). The same 9 burden-shifting framework discussed above applies to ERISA retaliation claims. 10 See Teutscher v. Riverside Sheriffs’ Ass’n, No. ED CV-06-1208-RHW, 2010 WL 11 11509231, at *4 (C.D. Cal. Apr. 27, 2010). 12 1. Prima facie case 13 Defendant submits that it is entitled to summary judgment on Plaintiff’s 14 associational discrimination and ERISA retaliation claims because Plaintiff cannot 15 show Mr. Edwards was aware of his daughter’s medical condition and associated 16 costs and therefore Plaintiff cannot show causation for either claim. ECF No. 54 at 17 17. In support of this argument, Defendant’s proffers Mr. Edwards’ declaration, in 18 which he states: “I do not have any personal knowledge of the medical expenses, 19 benefits, or workers’ compensation payments that Les Schwab or its insurer paid to 20 ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 18 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1245 Page 19 of 24 1 or on behalf of Mr. Kuykendall, Mr. Kuykendall’s daughter, or any other 2 beneficiary.” ECF No. 33 at 2. 3 Plaintiff responds that there is a genuine issue of material fact regarding Mr. 4 Edwards’ purported lack of knowledge. The Court agrees. First, Mr. Gerke testified 5 that he interviewed Plaintiff just prior to his termination and Plaintiff “told [Mr. 6 Gerke] that he needed his job because his daughter was sick.” ECF No. 73 at 24. 7 This comment was then memorialized in a report prepared by Mr. Gerke and sent 8 to Mr. Edwards, though the parties dispute whether Mr. Edwards received or 9 reviewed the report prior to Plaintiff’s termination. See ECF No. 61 at 11; ECF No. 10 69 at 18. Still, it is undisputed that after Plaintiff told Mr. Gerke about his daughter’s 11 medical condition, Mr. Gerke and Mr. Edwards spoke on the phone regarding 12 “whether [Plaintiff] was going to be terminated or not.” Id. at 26. In particular, Mr. 13 Gerke told Mr. Edwards “the details” of the interview and the “of the questions we 14 asked and the answers they gave.” Id. 15 Despite Mr. Gerke and Mr. Edwards’ statements that they never discussed 16 Plaintiff’s daughter’s medical condition prior to Plaintiff’s termination, the Court 17 finds that Plaintiff has shown a genuine issue of material fact as to whether Mr. 18 Gerke’s and Mr. Edward’s protests are credible. First, it is undisputed that at some 19 point Mr. Gerke transmitted the report discussing Plaintiff’s daughter to Mr. 20 Edwards. Though Mr. Edwards testified that he cannot recall when he reviewed it, ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 19 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1246 Page 20 of 24 1 he cannot say with certainty that the report was not transmitted or reviewed prior to 2 Plaintiff’s termination. ECF No. 72 at 43 (“[T]he earliest record that I have it that 3 it was placed on my Google Drive January 20th, which I would assume is close to 4 when I received it.” (emphasis added)). Furthermore, Mr. Gerke found Plaintiff’s 5 statement about his daughter’s illness material enough to include in his report about 6 the interview, yet apparently did not convey her illness to Mr. Edwards when he 7 communicated the details of the interview over the phone. It is for a jury to decide 8 whether this account is credible. 9 Drawing all reasonable inferences in favor of Plaintiff, the Court finds that 10 he has shown a genuine dispute of material fact regarding whether Mr. Edwards 11 was aware of his daughter’s medical condition prior to Plaintiff’s termination. 12 2. Burden shifting framework 13 The Court has already discussed the relevant burden shifting framework 14 under Plaintiff’s workers compensation retaliation claim, and the Court’s 15 assessment applies with equal force here. Briefly, though, the Court finds that 16 Defendant has stated a legitimate nondiscriminatory reason for Plaintiff’s 17 termination: that Plaintiff removed Defendant’s property without the requisite 18 permission. And for the same reasons previously discussed, i.e., inconsistencies and 19 deviations from usual practice, the Court finds that Plaintiff has met his burden to 20 ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 20 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1247 Page 21 of 24 1 show a genuine dispute as to whether Defendant’s proffered reason for his 2 termination and rehire date is pretextual. 3 C. Defendant is entitled to summary judgment on Plaintiff’s age discrimination claim. 4 Defendant moves for summary judgment on Plaintiff’s age discrimination 5 claim, arguing that Defendant cannot establish a prima facie case. ECF No. 54 at 6 18. Upon review of the record, the Court agrees with Defendant and finds that it is 7 entitled to summary judgment on this claim. 8 The Washington Law Against Discrimination (“WLAD”) prohibits 9 employers from discharging any employee on the basis of a protected characteristic, 10 including age. Wash. Rev. Code 49.60.180(2). “To survive summary judgment, a 11 plaintiff must demonstrate ‘a reasonable jury could find that the plaintiff’s protected 12 trait was a substantial factor motivating the employer's adverse actions.’” Nelson v. 13 Washington State Bd. of Pilotage Comm’rs, 11 Wash. App. 2d 1002 (2019) (quoting 14 Scrivener v. Clark Coll., 334 P.3d 541 (Wash. 2014) (en banc)). To do so, the 15 plaintiff must demonstrate the protected characteristic served as a substantial factor 16 motivating the employer’s decision. Id. 17 Here, Plaintiff offers no evidence suggesting that a material dispute of fact 18 remains regarding whether his age was a motivating factor in Defendant’s decision 19 to terminate his employment. Instead, Plaintiff insists that Defendant retaining other 20 employees over the age of fifty is not dispositive. ECF No. 60 at 12. But Plaintiff ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 21 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1248 Page 22 of 24 1 still bears the burden to show a genuine dispute of material fact exists regarding his 2 claim. See Anderson, 477 U.S. at 248–51. Even drawing all reasonable inferences 3 in Plaintiff’s favor, he has failed to meet his burden. The Court therefore grants 4 Defendant summary judgment on Plaintiff’s age discrimination claim. 5 D. Defendant is not entitled to summary judgment on Plaintiff’s disability discrimination claim. 6 Under both the ADA and WLAD, an employer may not discriminate against 7 an employee because of his or her disability. Plaintiff’s federal and state disability 8 discrimination claims are governed by the now “familiar McDonnell 9 Douglas burden-shifting framework.” Erickson v. Biogen, Inc., 417 F. Supp. 3d 10 1369, 1378 (W.D. Wash. 2019). “To set forth a prima facie disability discrimination 11 claim under the ADA and WLAD, a plaintiff must establish that: (1) he is 12 disabled[]; (2) he is qualified (i.e., able to perform the essential functions of the job 13 with or without reasonable accommodation); and (3) the employer terminated him 14 because of his disability.” Nunies v. HIE Holdings, Inc., 908 F.3d 428, 433 (9th Cir. 15 2018); see also Erickson, 417 F. Supp. 3d at 1378. 16 Defendant argues that Plaintiff cannot show the first factor—that he is 17 disabled—because at the time of his termination, he had been released to work with 18 no restrictions. ECF No. 54 at 20. Defendant is manifestly wrong. Even a cursory 19 assessment of the ADA and WLAD’s definitions of disability reveal that an 20 ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 22 Case 2:20-cv-00154-SMJ ECF No. 81 filed 04/25/22 PageID.1249 Page 23 of 24 1 employee is considered disabled if he has a record of a physical or mental 2 impairment. See 42 U.S.C. § 12102(2); Wash. Rev. Code § 49.60.040(7)(a). 3 As discussed in detail above, Plaintiff has a history of physical impairments 4 resulting from workplace injuries—one of which necessitated a lengthy medical 5 leave from work. Turning to the second factor, it is undisputed that Plaintiff was 6 qualified to perform the essential functions of his job. Thus, the only remaining 7 question is whether Defendant terminated Plaintiff because of his disability. The 8 Court has discussed Plaintiff’s physical disabilities in detail in assessing his 9 workers’ compensation retaliation claim and will not repeat its analysis here, except 10 to note that for the same reasons identified above, Plaintiff has shown a genuine 11 issue of material fact regarding whether he was terminated because of his history of 12 workplaces injuries—i.e., disabilities. 13 Accordingly, IT IS HEREBY ORDERED: 14 1. Defendant’s Motion for Summary Judgment, ECF No. 54, is 15 GRANTED IN PART AND DENIED IN PART. 16 A. The Court grants Defendant summary judgment on Plaintiff’s age discrimination claim only; the motion is otherwise denied. 17 18 // 19 // 20 // ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 23 Case 2:20-cv-00154-SMJ 1 // 2 // 3 4 5 ECF No. 81 filed 04/25/22 PageID.1250 Page 24 of 24 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 23rd day of April 2022. 6 7 _________________________ SALVADOR MENDOZA, JR. United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT – 24
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