Tymony v. Harper et al, No. 2:2013cv01085 - Document 31 (W.D. Wash. 2014)

Court Description: ORDER granting 20 Defendants' Motion for Summary Judgment as to Plaintiff's age discrimination claims under ADEA and WLAD; Defendants' Motion for Summary Judgment as to Plaintiff's racial discrimination claims under Title VII and WLAD; and Dismissing Without Prejudice Plaintiff's state law claims for rest and meal breaks. SIGNED by Judge Barbara J. Rothstein.(CD)

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Tymony v. Harper et al Doc. 31 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 1 2 3 CLIFF TYMONY, 4 Plaintiff, 5 v. 6 7 8 9 TROY HARPER, DICK SPADY, and DICK’S DRIVE-INS, L.P. Defendants. _________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) NO. C13-1085 BJR ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 I. Introduction 11 This matter comes before the Court on Defendants’ unopposed Motion for Summary 12 13 Judgment. Pro se plaintiff Cliff Tymony (“Plaintiff”) brings this racial and age discrimination 14 action against his former employer, Dick’s Drive-Ins L.P. (“Dick’s”); Dick’s owner, Dick Spady; 15 and Dick’s manager, Troy Harper (collectively, “Defendants”) under Title VII of the Civil 16 17 Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Washington Law Against Discrimination (“WLAD”), WASH. REV. CODE § 49.60.180. 1 For the following reasons, the 18 19 Court grants Defendants’ Motion for Summary Judgment. II. 20 Background A. Factual Background 21 22 Plaintiff, an African-American male, was sixty-five years old when he was hired as a 23 part-time night maintenance employee at Dick’s, a fast food restaurant. (Dkt. No. 22 at 2.) 24 1 25 To the extent that Plaintiff raises claims regarding Defendants’ alleged failure to provide him rest and meal periods, the Court notes that these are state law claims, see WASH. REV. CODE § 49.52.070, and declines to exercise supplemental jurisdiction, see 28 U.S.C. § 1367(c) (providing that a district court may decline to exercise supplemental jurisdiction after dismissing all claims over which it has original jurisdiction). Plaintiff remains free to assert these claims in state court. 1 Dockets.Justia.com 1 2 Plaintiff claims that during his employment orientation, Dick’s manager told him that he “would never be promoted” and equates this statement with a denial of promotion because of his race. 3 (Dkt. No. 4 at 3.) According to Defendants, Dick’s manager explained to Plaintiff that Plaintiff 4 would not receive a promotion because the position of part-time night maintenance employee did 5 not have the potential for promotion. (Dkt. No. 22 at 2.) Plaintiff, however, maintains that 6 Defendants denied him a promotion without any explanation. (Dkt. No. 21, Ex. 2 at 5.) 7 The next month, Plaintiff called in sick after he sustained a non-work-related injury, and 8 9 he stated that he would not be able to return to work for two weeks. (Dkt. No. 22 at 3.) Dick’s 10 manager responded that Plaintiff’s absence would “create a hardship on the location and that 11 under the circumstances [Plaintiff] should quit his job and reapply when he was feeling better.” 12 (Id.) Plaintiff quit his position and returned his keys to Dick’s. (Id.) Plaintiff never returned to 13 his job at Dick’s. (Id.) This suit followed. 14 B. Procedural Background 15 Plaintiff previously moved for appointment of counsel, but the Court denied his request 16 17 as well as Plaintiff’s Motion to Reconsider that decision. 2 (Dkt. No. 12 at 2.) Discovery 18 proceeded and was due to close on April 25, 2014. (Dkt. No. 18 at 2.) Approximately a month 19 before the discovery deadline, Defendants moved for summary judgment. (Dkt. No. 20.) 20 21 22 Plaintiff sought an extension of time to oppose Defendants’ motion, explaining that he lacked legal expertise and a sufficient discovery period. (Dkt. No. 24 at 1). The Court granted Plaintiff an extension until July 7, 2014, but denied any further discovery, noting that Plaintiff 23 24 25 already had a sufficient discovery period and provided no compelling reason to warrant an extension. (Dkt. No. 30.) Finally, the Court warned Plaintiff that if he failed to file an 2 This case was reassigned to the undersigned judge on April 16, 2014, after the decisions to deny counsel had been rendered. 2 1 2 opposition to Defendants’ Motion for Summary Judgment, the Court would treat Defendants’ motion as conceded and dismiss this case. 3 (Id.) 3 To date, Plaintiff has not filed an opposition. However, because the Court has an 4 affirmative duty to determine whether Defendants met their initial burden of demonstrating a 5 lack of genuine dispute of material fact for trial, the Court will now assess the substance of the 6 parties’ claims. See Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003) (imposing a duty 7 to address a moving party’s claim to judgment as a matter of law instead of granting summary 8 9 10 judgment based on the non-moving party’s failure to oppose). III. Legal Standard A. Summary Judgment 11 12 Summary judgment is appropriate when the moving party demonstrates that there is no 13 genuine issue as to any material fact and that it is entitled to judgment as a matter of law. FED. 14 R. CIV. P. 56(a). Genuine issues of material fact that preclude summary judgment are “disputes 15 over facts that might affect the outcome of the suit under the governing law.” Anderson v. 16 17 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A dispute surrounding a material fact is genuine 18 when enough evidence exists for a reasonable jury to rule in favor of the nonmoving party. Id. at 19 248. When deciding a motion for summary judgment, a court must assume all issues of fact in 20 the non-moving party’s favor. See Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th 21 22 Cir. 2011). Moreover, the Court remains mindful of its duty to construe pro se pleadings liberally. Hamilton v. United States, 67 F.3d 761, 764 (9th Cir. 1995). 23 24 25 3 The court provided this warning even though non-prisoner pro-se litigants are not entitled to any special notice from the Court regarding Rule 56’s requirements. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citing Jacobsen v. Filler, 790 F.2d 1362, 1364 n. 4 (9th Cir. 1986)). 3 B. Racial Discrimination 1 “To establish a prima facie case of disparate treatment under Title VII, a plaintiff must 2 3 provide evidence that ‘give[s] rise to an inference of unlawful discrimination.’” 4 Lyons v. 4 England, 307 F.3d 1092, 1112 (9th Cir. 2002) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 5 450 U.S. 248, 253 (1981)). When no direct evidence of discrimination exists, a Title VII 6 plaintiff may prove his case through circumstantial evidence, following the three-step burden- 7 shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 8 9 plaintiff may establish a prima facie case of discrimination for a failure-to-promote claim by 10 showing that “(1) he belongs to a statutorily protected class, (2) he applied for and was qualified 11 for an available position, (3) he was rejected despite his qualifications, and (4) after the rejection, 12 the position remained available and the employer continued to review applicants possessing 13 comparable qualifications.” Lyons, 307 F.3d at 1112 (citing McDonnell Douglas Corp., 411 14 U.S. at 802). 15 Establishing a prima facie case creates a rebuttable presumption that the employer 16 17 discriminated against the employee in an unlawful manner. Id. Therefore, the burden of 18 production shifts to the employer “to articulate a legitimate, nondiscriminatory reason for the 19 plaintiff’s rejection.” Warren v. City of Carlsbad, 58 F.3d 439, 442 (9th Cir. 1995). To rebut the 20 presumption of discrimination, the employer must clearly set forth the reasons for rejecting the 21 plaintiff’s application. Lyons, 307 F.3d at 1112 (citing Burdine, 450 U.S. at 255). 22 23 24 4 25 Plaintiff also brings a claim under the Washington Law Against Discrimination (“WLAD”). WLAD is patterned after Title VII, so “decisions interpreting the federal act are persuasive authority” for WLAD’s construction. Xieng v. Peoples Nat’l Bank of Washington, 844 P.2d 389, 392 (Wash. 1993) (en banc) (citing Oliver v. Pacific Northwest Bell Tel. Co., 724 P.2d 1003, 1005 (Wash. 1986) (en banc)) (noting that because WLAD “lacks specific criteria for proving a discrimination claim,” the court looks to cases that interpret equivalent federal laws). 4 1 2 If the employer sustains its burden, the plaintiff must then establish that the employer’s “proffered nondiscriminatory reason is merely a pretext for discrimination.” Id. While the 3 plaintiff maintains the burden of persuasion, the third burden shift does not impose a new burden 4 of production. 5 discrimination’ without additional proof once the plaintiff has made out her prima facie case if 6 Id. Instead, a factfinder may “infer ‘the ultimate fact of intentional the factfinder believes that the employer’s proffered nondiscriminatory reasons lack credibility.” 7 Id. at 1112–13 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)). 8 9 In addition, a court looks ultimately to cumulative evidence and considers both indirect and 10 direct evidence so long as they are available. Id. “Circumstantial evidence of pretext must be 11 specific and substantial in order to survive summary judgment.” Bergene v. Salt River Project 12 Agric. Improvement & Power Dist., 272 F.3d 1136, 1142 (9th Cir. 2001) (citing Goodwin v. 13 Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998)). The plaintiff can demonstrate pretext 14 “either directly by persuading the court that a discriminatory reason more likely motivated the 15 employer or indirectly by showing that the employer’s proffered explanation is unworthy of 16 17 18 19 20 21 22 credence.” Chuang v. University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) (quoting Burdine, 450 U.S. 248 at 256). C. Age Discrimination ADEA claims are also evaluated through the McDonnell Douglas three-stage burdenshifting framework described above. See Shelley v. Green, 666 F.3d 599, 608–09 (9th Cir. 2012). A plaintiff may establish a prima facie case of age discrimination by demonstrating that 23 24 25 when the alleged failure to promote occurred, (1) he was at least forty years old, (2) he was qualified for the position for which the plaintiff applied, (3) he was denied the position, and (4) the employer gave the promotion to a substantially younger person. Shelley, 666 F.3d at 608. A 5 1 2 plaintiff who alleges an ADEA claim has the ultimate burden of proving that age was a “determining factor” his employer’s decision. Steckl v. Motorola, Inc., 703 F.2d 392, 392–93 3 (9th Cir. 1983) (citing Douglas v. Anderson, 656 F.2d 528, 531 (9th Cir. 1981)). 4 IV. 5 6 Analysis Defendants argue that Plaintiff’s failure-to-promote discrimination claims fail because no promotional opportunity existed for an employee in Plaintiff’s position. (Dkt. No. 20 at 10.) 7 Plaintiff has provided no response. As elaborated above, a plaintiff who asserts either an age or 8 9 racial discrimination claim for failure-to-promote must establish, inter alia, that he applied for an 10 available position. See Shelley, 666 F.3d at 608 (age discrimination); Lyons, 307 F.3d at 1112 11 (racial discrimination). 12 Here, Plaintiff has failed to establish that he applied for an available promotion or that 13 such a position was available. Defendants, however, present a declaration from Dick’s manager, 14 who explains that he told Plaintiff that the position of part-time night maintenance employee was 15 not a position with promotional opportunities. (Dkt. No. 22 at 2.) In addition, Defendants 16 17 present an organizational chart for Dick’s that shows no indication of promotional opportunities 18 for the position of part-time night maintenance employee. (Dkt. No. 23, Ex. 2 at 2.) The Court 19 has no duty to “search for evidence that would create a factual dispute.” Bias v. Moynihan, 508 20 F.3d 1212, 1219 (9th Cir. 2007). Accordingly, Plaintiff has failed to establish his prima facie 21 22 case and the Court grants Defendants’ Motion for Summary Judgment. V. Conclusion 23 24 25 Because Plaintiff failed to present any evidence in opposition to Defendants’ Motion for Summary Judgment, and because Defendants have established that they are entitled to judgment 6 1 2 3 4 as a matter of law, the Court grants Defendants’ motion. memorandum opinion is issued this 24th day of July, 2014. NOW, THEREFORE, the Court ORDERS as follows: (1) 5 6 An Order consistent with this Defendants’ Motion for Summary Judgment as to Plaintiff’s age discrimination claims under ADEA and WLAD is GRANTED; (2) Defendants’ Motion for Summary Judgment as to Plaintiff’s racial discrimination 7 claims under Title VII and WLAD is GRANTED; and 8 9 10 11 (3) Plaintiff’s state law claims for rest and meal breaks are DISMISSED without prejudice. DATED this 24th day of July, 2014. 12 13 14 BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 7

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