Bernal et al v. The Boeing Company, No. 2:2022cv00533 - Document 44 (W.D. Wash. 2023)
Court Description: ORDER denying Defendant's 30 Motion for Summary Judgment. Signed by Judge Tana Lin. (MJV)
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Bernal et al v. The Boeing Company Doc. 44 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 1 of 16 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 PAUL BERNAL, CASE NO. 2:22-cv-00533-TL Plaintiff, 12 ORDER ON MOTION FOR SUMMARY JUDGMENT v. 13 THE BOEING COMPANY, 14 Defendant. 15 16 17 This is an action for damages under the Washington Law Against Discrimination 18 (“WLAD”), RCW 49.60 et seq., for alleged retaliation. This matter is before the Court on 19 Defendant the Boeing Company’s Motion for Summary Judgment (Dkt. No. 30). Having 20 considered Plaintiff Paul Bernal’s response (Dkt. No. 39), Defendant’s reply (Dkt. No. 40), and 21 the relevant record, the Court DENIES the motion. 22 23 I. BACKGROUND The following facts are undisputed unless otherwise noted. 24 ORDER ON MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 2 of 16 1 A. Plaintiff’s Prior Work History Plaintiff was hired by Defendant in 1989 and worked for Defendant through the events of 2 3 this case. Dkt. No. 37 ¶ 2 (Plaintiff declaration). He received positive performance reviews, pay 4 raises, and bonuses. Id. He was also promoted, including in 2011 when he entered an “M Level” 5 manager position in Defendant Boeing’s Intellectual Property Licensing Company (“BIPLC”). 1 6 Id. In 2013, Rick Svoboda became the director of BIPLC, and Plaintiff reported to him. Id. ¶ 3. 7 That same year, at Svoboda’s invitation, Plaintiff was tasked with developing and managing the 8 new Global Patent & Technology (“GP&T”) team. Id. 9 In 2014, Svoboda hired Linda Beltz to be the “M Level” manager of BIPLC’s 10 Commercial Aviation Licensing (“CAL”) team. Id. ¶ 4. Plaintiff heard through coworkers that 11 Beltz had a reputation for creating a hostile work environment for BIPLC’s older workers. Id. 12 This reputation spread to a first-level manager who appeared to emulate Beltz’s behavior. Id. 13 ¶¶ 5–6. Plaintiff learned that multiple internal complaints had been filed about Beltz and the new 14 manager, and he discussed the complaints with Svoboda. Id. ¶¶ 8, 10; id., Ex. 1 (email from ex- 15 employee to Svoboda). In April 2018, Svoboda suggested that Plaintiff lead the CAL team 16 instead of Beltz, which Plaintiff agreed to do. Id. ¶ 11; see Dkt. No. 38 at 9 (email from Svoboda 17 to his boss Peter Hoffman). That change never happened. 18 B. Plaintiff’s Reassignment 19 1. 20 In June, Svoboda instead asked Plaintiff to lead an IP enforcement team within BIPLC. June 2018–July 2018 21 Dkt. No. 37 ¶ 12. Plaintiff shared his reservations with Svoboda and told him that he was not 22 excited about leading the team. Id.; Dkt. No. 31 at 38 (68:3–6) (Plaintiff deposition) (“I said, I’m 23 1 24 Defendant also refers to BIPLC as its “Intellectual Property group.” Dkt. No. 30 at 1 (emphasis added). Neither Party argues that the status of BIPLC is relevant to Defendant’s alleged liability. ORDER ON MOTION FOR SUMMARY JUDGMENT - 2 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 3 of 16 1 not really that excited about it. It’s not my area of expertise. I would prefer to continue leading 2 GP&T . . . .”); id. at 39 (69:2–3) (“I said not that interested. Not my desires, passions.”). Plaintiff 3 told Svoboda that he would “think about it and come back to you.” Id. (69:4). 4 In early July, the two men spoke again about the proposed IP enforcement role. Id. (69:7– 5 9). Plaintiff said, “I’ve given it some thought. I’ll take it, I’ll do it.” Id. (69:17–18). Svoboda said 6 that he needed “120 percent” and “somebody dedicated.” Id. (69:20–21). Plaintiff responded that 7 he would give “100 percent” and “knock it out of the park.” Id. (69:22–23). Plaintiff does not 8 recall how the meeting ended, nor does Defendant provide evidence as to how it ended. See id. at 9 39–40 (69:25–70:24). But following the meeting, Plaintiff began to lead the IP enforcement team 10 and updated Svoboda on his work. Dkt. No. 37 ¶¶ 15, 18; see also Dkt. No. 32 ¶ 7 (“[Plaintiff] 11 was a sort of transitionary placeholder developing a workshop while I evaluated next steps.”). 12 On July 19, Svoboda told Plaintiff during a meeting that Plaintiff’s team would be 13 required to work closely with Beltz. Dkt. No. 31 at 51 (90:23–25). Plaintiff told Svoboda that he 14 “will be going to HR [Human Resources]” if Beltz targeted him or his older team members for 15 harassment. Id. at 52 (91:7–10). Svoboda “raised his voice,” stating, “[Y]ou can’t do that. . . . 16 I’m coaching her, I’m mentoring her, I’m working with her. You cannot go to HR. You bring all 17 complaints to me.” Id. (91:11–15). Plaintiff stated, “I will be going to HR and informing you 18 after the fact.” Id. (91:16–17). At that point, the meeting ended. Id. (91:18–20). Whereas Plaintiff 19 and Svoboda would typically see each other once a day and Svoboda would “regularly” stop by 20 Plaintiff’s office, “[t]his stopped immediately after July 19.” Dkt. No. 37 ¶ 17. Svoboda only 21 interacted with Plaintiff “when required” and took a “weird route” to avoid passing Plaintiff’s 22 office on the way to get coffee. Id. In “late July,” Svoboda ultimately selected a different person, 23 Angela Smith, to permanently lead the IP enforcement team. Dkt. No. 32 ¶ 7. 24 ORDER ON MOTION FOR SUMMARY JUDGMENT - 3 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 4 of 16 1 2. 2 On August 2, Svoboda called Plaintiff. Dkt. No. 31 at 41 (79:7–9); Dkt. No. 32 ¶ 8. August 2018–December 2018 3 Svoboda stated that Plaintiff “was no longer going to be the enforcement manager,” as Svoboda 4 “did not want a disgruntled employee leading the team.” Dkt. No. 31 at 41 (79:14–17). He stated 5 that “this decision has been made.” Id. at 42 (80:2). He told Plaintiff that he had 90 days to 6 develop future options for GP&T and “find another job outside of intellectual property, or you 7 will be demoted out of management.” Id. (80:4–9); Dkt. No. 32 ¶ 8 (“I specifically informed 8 [Plaintiff] that . . . [Plaintiff] needed to find another Boeing Manager role or else be reassigned.”). 9 In August and September, Plaintiff heard about “several more complaints” that were to be 10 filed against Beltz. Dkt. No. 37 ¶ 20. Also, at the end of September, Plaintiff’s replacement, 11 Smith, left her role. Id. ¶ 21. When Plaintiff asked to fill the position, Svoboda told him his 12 “style” of management was not wanted. Id. He also stated that Plaintiff could apply “and, we’ll 13 just see how that goes.” Id. Plaintiff continued in his role, and he looked for new positions at 14 Defendant without success. Id. 15 In December, Plaintiff received his 2018 performance review from Svoboda. Dkt. No. 31 16 at 47 (86:18–25); see Dkt. No. 38 at 11–17 (review). The meeting was cordial, but the two men 17 “had some disagreements on the scores,” as they had with prior reviews. Dkt. No. 31 at 49 18 (88:10–13); see id. at 49–50 (88:18–89:19); Dkt. No. 32 at 11–44 (prior reviews). Plaintiff 19 provided a written rebuttal to the review, setting out his July remarks to Svoboda about going to 20 HR. See Dkt. No. 31 at 51 (90:3–11); Dkt. No. 38 (Boyle declaration) at 15–16 (written rebuttal). 21 At the end of 2018, Plaintiff was still in his GP&T management role, despite Svoboda’s 22 90-day deadline. Dkt. No. 31 at 45 (84:16–18). Plaintiff thus had more time to find a new 23 management position, although Svoboda did not state that he was giving more time. See Dkt. 24 No. 31 at 46–47 (85:20–86:2). ORDER ON MOTION FOR SUMMARY JUDGMENT - 4 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 5 of 16 1 3. 2 On January 7, Svoboda emailed Hoffman. Dkt. No. 38 at 22 (email from Svoboda to January 2019–March 2019 3 Hoffman). He told Hoffman that Plaintiff “still hasn’t found a position outside IPM” and, 4 notably, that “HR is recommending we don’t re-classify him as a Level 5,” a demotion, “at least 5 at this time.” Id. Svoboda also stated that he was “thinking of retaining [Plaintiff] as an M level 6 manager,” which “should improve his chances of finding something else . . . .” Id. 7 As Plaintiff continued in his role, he felt that Svoboda “continued to treat [him] in a 8 dismissive and marginalized manner.” Dkt. No. 37 ¶ 25. For example, Svoboda made a direct 9 assignment to one of Plaintiff’s team members. Id. And in a meeting in February 2019, Svoboda 10 11 asked “mockingly,” “[W]hat do you do around here?” Id. ¶ 26. In early March, Svoboda discussed his pending retirement with Plaintiff. Id. ¶ 27. He 12 stated that “due to his upcoming retirement there would be no organizational changes regarding 13 [Plaintiff] or [the] GP&T team,” instead allowing the new BIPLC director to decide “what 14 changes, if any, to make.” Id. On March 20, Svoboda told HR that Plaintiff had still not found a 15 new position, “leav[ing] us [Svoboda and Hoffman] with only one alternative and that is to 16 downgrade him to a level 5.” Dkt. No. 32 at 48 (email to HR). He asked HR to coordinate with 17 them, “to ensure we are following the right HR process steps.” Id. 18 4. 19 On April 3, Svoboda emailed Hoffman with information he received from HR. Dkt. No. 38 20 at 32 (email). Svoboda detailed a process that needed to be followed for any reassignment. Id. That 21 included a “side by side comparison” of Plaintiff with another employee, after which “[t]he person 22 with the lower rating” would receive “an offer to reclassify to a level 5.” Id. April 2019 23 On April 8, Plaintiff met with Svoboda. Dkt. No. 15 (First Amended Complaint (“FAC”)) 24 ¶ 48. Svoboda told Plaintiff that he would be “moving to a new role.” Dkt. No. 31 at 55 (120:22– ORDER ON MOTION FOR SUMMARY JUDGMENT - 5 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 6 of 16 1 25); see also id. at 56 (121:12–14); Dkt. No. 32 ¶ 12. He also told Plaintiff that Defendant “was 2 going to make” an offer for a new role as a “Level 5 IP licensing Specialist,” which he would 3 have 10 days to accept. Dkt. No. 37 ¶ 9. The same day, Svoboda sent a follow-up email to 4 Hoffman, stating, “In thinking ahead, if we offer [Plaintiff] a level 5 position, we’ll also need to 5 figure out what his SOW [statement of work] will be.” Dkt. No. 38 at 31 (emphasis added). 6 On April 10, Plaintiff received a letter from Defendant. Dkt. No. 31 at 64 (letter), 66 7 (same). The letter states that Plaintiff is offered a reassignment “based on surplus” and would be 8 supervised by Svoboda. Dkt. No. 31 at 64; Dkt. No. 37 ¶ 30; see also Dkt. No. 38 at 35 (April 10 9 email from Svoboda to HR) (“The offer says that [Plaintiff] will be reporting to me.”); 10 Dkt. No. 37 ¶ 29. The letter also stated that “Your assignment is contingent upon the 11 following: . . . .” Id. (emphasis in original). That included “employee release requirements,” 12 which, if not met, would mean Plaintiff “may be ineligible to transfer and this offer will be null 13 and void.” Id. Plaintiff was given three days to accept the offer or otherwise resign. Id. After that day and no earlier than April 12, 2 Plaintiff received an identical second letter 14 15 from Defendant, except it stated that Beltz, not Svoboda, would be his supervisor. Dkt. No. 31 at 16 64, 66; Dkt. No. 37 ¶ 30; Dkt. No. 38 at 34 (April 12 email from HR stating, “The offer for 17 [Plaintiff] has been extended,” after prior email discussion about replacing supervisor name). On April 17, Plaintiff accepted the offer. Dkt. No. 38 at 41 (April 17 email notification of 18 19 offer acceptance); Dkt. No. 37 ¶ 30. 20 2 21 22 23 24 Defendant points out that Plaintiff’s account of the timing of the second letter has changed between the filing of the FAC and the filing of his declaration. Dkt. No. 40 at 9; compare Dkt. No. 15 ¶ 53 (letter allegedly received April 12) with Dkt. No. 37 ¶ 30 (letter allegedly received April 15). In his declaration, Plaintiff states, “I had initially thought I received the second letter on 4/12/19, but when reviewing the discovery in this case it appears that I received it on Monday 4/15/19.” Id. Plaintiff does not attach or cite to the “discovery” that indicates receipt on April 15. However, Plaintiff had only three days to accept the offer (Dkt. No. 31 at 66), which he did on April 17 (Dkt. No. 38 at 41) and which was apparently permitted by Defendant, as demonstrated by Plaintiff’s continued work for Beltz. See infra, Section I.C. This timeline strongly suggests that Plaintiff did not receive the letter until at least April 14, three days prior to acceptance of the offer. Regardless, this issue is not material to resolution of the motion. ORDER ON MOTION FOR SUMMARY JUDGMENT - 6 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 7 of 16 1 On April 18, Svoboda told Plaintiff that “the reassignment offer was no longer tentative” 2 and “would happen the following day.” 3 Dkt. No. 37 ¶ 31. Svoboda also “sent out an email to the 3 nationwide IPM group confirming” that Plaintiff had been reassigned. Id.; Dkt. No. 32 at 52 4 (Svoboda email). 5 C. Plaintiff’s New Role Plaintiff thus began work on Beltz’s team, though Svoboda could have assigned Plaintiff 6 7 to other positions that were not supervised by Beltz. Dkt. No. 37 ¶¶ 32–33. Plaintiff had no 8 experience in the new role and was not given training typically provided to someone in a new 9 position. Id. ¶ 33. He was required to comply with restrictions on remote work that applied to 10 new, probationary employees, which “humiliated” him. Id. ¶ 34. He was moved out of his office 11 and assigned to a cubicle known by employees on Beltz’s team as “the Green Mile” because of 12 the older workers who sat there. Id. ¶ 35. Beltz pressured Plaintiff to withdraw from his long-time volunteer roles at the company 13 14 and took away his volunteer budget when he refused. Id. ¶ 36. Plaintiff also received pressure 15 from the new BIPLC director to withdrawn from his volunteer work. Id. Plaintiff limited his 16 volunteer work but continued his mentoring relationships. Id. Beltz demanded access to 17 information about those relationships. Id. At no time did Beltz allege that the volunteer work 18 affected Plaintiff’s normal work. Id. ¶ 37. 19 20 21 22 23 24 3 Defendant argues that “for the first time in his opposition declaration,” Plaintiff states that he met with Svoboda on April 18—a “new, inconsistent, uncorroborated, and self-serving” statement that should be discounted on summary judgment. Dkt. No. 40 at 9–10. But in the FAC, Plaintiff states that he was “informed” on April 18—separate from Svoboda’s email “later that day”—that the reassignment was no longer tentative. See Dkt. No. 15 ¶ 54. And in his deposition, Plaintiff was only asked if he had spoken to Svoboda “prior to April 18” about Svoboda’s decision to move Plaintiff into a new role; he was not asked about any communication on April 18, or whether Svoboda indicated prior to April 18 that the reassignment was no longer tentative. See Dkt. No. 31 at 55 (120:18–20, 22–24). Moreover, the April 18 meeting would be squarely within Plaintiff’s knowledge. Cf. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1059 n.5 (9th Cir. 2002) (discounting a “self-serving and uncorroborated” affidavit asserting facts for which affiant did not show a basis of knowledge). ORDER ON MOTION FOR SUMMARY JUDGMENT - 7 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 8 of 16 1 Plaintiff’s first assignment was to write “Release of Boeing Proprietary Information” 2 (“RBPI”) applications. Id. ¶ 38. “To the amazement of [his] peers,” Plaintiff completed most of 3 the applications within a 10-week deadline and completed them all after Beltz approved a brief 4 extension. Id. Beltz only briefly mentioned Plaintiff’s accomplishment at a team meeting and 5 “awarded” Plaintiff three “tokens for free ice cream at [Defendant’s] cafeteria.” Id. Plaintiff “felt 6 embarrassed and humiliated by what [he] viewed as intentional diminishment of [his] work.” Id. 7 Later, during Plaintiff’s 2019 performance review, Beltz cited as a deficiency Plaintiff’s failure 8 to meet the original deadline. Id. ¶ 39. When Plaintiff pointed out that she approved the deadline, 9 Beltz changed the review to “intimate” that Plaintiff had misrepresented the deadline. Id. 10 When Defendant shut down its in-person operations due to the COVID-19 pandemic, 11 Plaintiff’s interactions with Beltz were limited to bimonthly telephone calls and monthly group 12 video conference meetings. Id. ¶ 40. Beltz was “often” late joining calls with Plaintiff and 13 “regularly” appeared distracted or did something else like making lunch or eating. Id. Her 14 attitude made Plaintiff feel “disrespected, and that [his] work was unimportant.” Id. 15 “As a result of all of the above,” Plaintiff’s “work environment became joyless.” Id. ¶ 41. 16 He “consistently felt humiliated and undermined.” Id. He suffered “humiliation, embarrassment, 17 anger, eye spasms, loss of confidence, and some depression and sleep loss.” Id. 18 19 II. LEGAL STANDARD Summary judgment is appropriate where “the movant shows that there is no genuine 20 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 21 Civ. P. 56(a). At this stage, the Court does not make credibility determinations, nor does it weigh 22 the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); accord Munden v. 23 Stewart Title Guar. Co., 8 F.4th 1040, 1044 (9th Cir. 2021). The inquiry turns on “whether the 24 evidence presents a sufficient disagreement to require submission to a jury or whether it is so ORDER ON MOTION FOR SUMMARY JUDGMENT - 8 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 9 of 16 1 one-sided that one party must prevail as a matter of law.” Liberty Lobby, Inc., 477 U.S. at 251– 2 52. A genuine triable issue of material fact exists where “the evidence is such that a reasonable 3 jury could return a verdict for the nonmoving party.” Id. at 248; see also McSherry v. City of 4 Long Beach, 584 F.3d 1129, 1135 (9th Cir. 2009) (explaining that this is the inquiry at the 5 summary judgment stage, “[s]tripped to its core”). Additionally, “all justifiable inferences” must 6 be drawn in the non-movant’s favor, id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 7 144, 158–59 (1970)), “only in the sense that, where the facts specifically averred by [the non- 8 moving] party contradict facts specifically averred by the movant, the [summary judgment] 9 motion must be denied.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). 10 To establish that a fact cannot be genuinely disputed, the movant can either cite the 11 record or show “that the materials cited do not establish the . . . presence of a genuine dispute, or 12 that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 13 56(c)(1). Once the movant has made such a showing, “its opponent must do more than simply 14 show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 15 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation omitted); accord In re Oracle 16 Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010); see also Liberty Lobby, Inc., 477 U.S. at 17 252 (specifying that the non-movant “must show more than the mere existence of a scintilla of 18 evidence”). The non-movant “bears the burden of production under [FRCP] 56 to ‘designate 19 specific facts showing that there is a genuine issue for trial.’” Ricci v. DeStefano, 557 U.S. 557, 20 586 (2009) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). “[A]ny dispute about 21 the facts must be ‘genuine’ and not ‘blatantly contradicted by the record, so that no reasonable 22 jury could believe it.’” Tabares v. City of Huntington Beach, 988 F.3d 1119, 1124 (9th Cir. 23 2021) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). The Court will enter summary 24 judgment “against a party who fails to make a showing sufficient to establish the existence of an ORDER ON MOTION FOR SUMMARY JUDGMENT - 9 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 10 of 16 1 element essential to that party’s case, and on which that party will bear the burden of proof at 2 trial.” Celotex, 477 U.S. at 322 (1986); see also Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d 3 794, 798, 805 (9th Cir. 2010) (affirming grant of summary judgment against appellant who had 4 “failed to adduce any evidence or authority to support her claim”). 5 6 III. A. DISCUSSION Preliminary Matter Plaintiff requests to strike certain statements from the Svoboda Declaration (Dkt. No. 32) 7 8 and the entirety of the Hoffman Declaration (Dkt. No. 33). Dkt. No. 39 at 13–16. Defendant 9 concedes that “the evidence sought to be excluded is not necessary to rule” on its summary 10 judgment motion and suggests instead that the Court “disregard such evidence for purposes of 11 this motion only . . . .” Dkt. No. 40 at 10 (emphasis in original). The Court agrees that the 12 contested statements are not material to resolution of the motion. Accordingly, the Court 13 disregards the statements for purposes of the motion only. 14 B. 15 Retaliatory Demotion Defendant argues that Plaintiff’s retaliatory demotion claim is barred by the statute of 16 limitations. Dkt. No. 30 at 7–8; Dkt. No. 40 at 3–6. Specifically, Defendant argues that 17 “[Plaintiff’s] reassignment was decided no later than March 20, 2019, and was final and 18 communicated to [Plaintiff] on April 8, 2019 . . . .” Dkt. No. 30 at 8. In opposition, Plaintiff 19 argues that the decision was not final and communicated to Plaintiff until April 18, 2019, when 20 he was told the reassignment was no longer tentative. Dkt. No. 39 at 17–20. 21 A three-year statute of limitations applies to WLAD claims. Antonius v. King Cnty., 103 22 P.3d 729, 732 (Wash. 2004) (en banc) (explaining that because WLAD does not contain its own 23 limitations period, the general three-year statute of limitations for personal injury actions in 24 RCW 4.16.080(2) applies). The three-year clock begins to run when the decision is final and ORDER ON MOTION FOR SUMMARY JUDGMENT - 10 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 11 of 16 1 communicated to the employee, even if the effects of that decision are not felt until later. Del. 2 State Coll. v. Ricks, 449 U.S. 250, 258 (1980); accord Albright v. State, Dep’t of Soc. & Health 3 Serv. Div. of Developmental Disabilities, 829 P.2d 1114, 1116 (Wash. Ct. App. 1992) (adopting 4 the Ricks standard for a WLAD claim, explaining that the statute of limitations did not accrue 5 until a request for disability-related accommodation was “officially denied and communicated to 6 [the plaintiff]”). 7 Here, Defendant’s decision to demote Plaintiff was not final until April 18, 2019. For all 8 its briefing, Defendant does not dispute Plaintiff’s sworn statement that on April 18, “[Svoboda] 9 came into my office and told me the reassignment offer was no longer tentative and the 10 reassignment would happen the following day.” Dkt. No. 37 ¶ 31. As this Court explained in its 11 Order on Defendant’s Motion to Dismiss, “there would have been no reason to inform [Plaintiff] 12 that the reassignment offer was no longer tentative on April 18, 2019, if the decision had been 13 final before that date.” Dkt. No. 35 at 6. 14 15 Additional facts support the conclusion that the demotion was not final until April 18: • At the end of 2018, Plaintiff was still in his GP&T management role, even though Svoboda’s 90-day deadline to find a new job had passed. See Dkt. No. 31 at 45 (84:16– 18), 46–47 (85:20–86:2). • On January 7, 2019, Svoboda told Hoffman that “HR is recommending we don’t re-classify [Plaintiff] as a Level 5, at least at this time.” Dkt. No. 38 at 22. • In early March, Svoboda told Plaintiff that the new BIPLC director would decide what changes to make regarding Plaintiff and his team. Dkt. No. 37 ¶ 27. • On April 3, Svoboda told Hoffman that they had to follow a process that included a “side by side comparison” of Plaintiff with another employee, which might have resulted in the reassignment of the other employee and not Plaintiff. See Dkt. No. 38 at 32. 16 17 18 19 20 21 22 23 24 ORDER ON MOTION FOR SUMMARY JUDGMENT - 11 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 12 of 16 1 • On April 10 and (at least) April 12, Defendant’s offer letters to Plaintiff stated in bold type that Plaintiff’s reassignment was “contingent” on the satisfaction of certain requirements. See Dkt. No. 31 at 64, 66; see also McConnell v. Gen. Tel. Co. of Cal., 814 F.2d 1311, 1317 (9th Cir. 1987) (“Although the letter may be sufficient to put an individual on notice as to some act of discrimination, it is far from clear that it was sufficient to give appellant notice of his actual termination.”). • On April 18, Svoboda informed other staff of Plaintiff’s demotion. See Dkt. No. 32 at 52. 2 3 4 5 6 7 Defendant responds that Plaintiff was told on multiple prior occasions that he was going 8 to be demoted. See Dkt. No. 40 at 3–5. Indeed, as Defendant points out, Plaintiff pleads these 9 occasions in his FAC. Id.; see Dkt. No. 15 ¶¶ 30, 48–50, 53. But these prior occasions are, at 10 best, expressions of an intent to demote Plaintiff, not the communication of a decision that was 11 actually final. Unlike the binding Trustees’ vote on tenure in Ricks, the demotion decision here 12 was not binding and was apparently “contingent” until the very end. Defendant claims the 13 follow-up letters were “simply administrative record-keeping.” Dkt. No. 40 at 5. But even if the 14 letters were simply “administrative,” Defendant cannot get around the fact that it chose to 15 include in the letters language specifically characterizing the reassignment as “contingent” on the 16 satisfaction of certain requirements and, in addition, chose to emphasize the contingent nature by 17 bolding that very sentence. See Dkt. No. 31 at 64, 66. Nor does Defendant provide any 18 explanation for the fact that Svoboda did not inform other staff of Plaintiff’s demotion until 19 April 18. As this Court explained in its prior Order, “[Defendant] has not established a similar 20 level of finality with respect to its decision to demote [Plaintiff] expressed by Svoboda on April 21 8, 2019.” Dkt. No. 35 at 5. Even if Defendant wished to demote Plaintiff for some time and 22 shared those wishes directly with him, such wishes do not trigger the statute of limitations until 23 they are reality. 24 ORDER ON MOTION FOR SUMMARY JUDGMENT - 12 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 13 of 16 1 2 3 Accordingly, as to Plaintiff’s retaliatory demotion claim, the Court DENIES the motion. C. Retaliatory Hostile Work Environment Defendant argues that Plaintiff’s allegations cannot constitute a hostile work environment 4 as a matter of law because the terms and conditions of Plaintiff’s employment were not 5 sufficiently affected. Dkt. No. 30 at 8–11; Dkt. No. 40 at 8. As part of that argument, Defendant 6 contends that allegations prior to the limitations period cannot be linked to allegations within the 7 period such that they establish a continuing violation. Dkt. No. 30 at 11; Dkt. No. 40 at 7–8. In 8 opposition, Plaintiff argues that all allegations can indeed be linked, and that they constitute 9 sufficient evidence of a hostile work environment. Dkt. No. 39 at 20–24. 10 “A hostile work environment ‘occurs over a series of days or perhaps years . . . . Such 11 claims are based on the cumulative effects of individual acts.’” Loeffelholz v Univ. of Wash., 285 12 P.3d 854, 857 (Wash. 2012) (en banc) (quoting Antonius, 103 P.3d at 734). An employer can be 13 held liable for hostile work environment conduct occurring more than three years before the 14 plaintiff filed suit (i.e., before the “filing” or “limitations” period) if at least one act “contributing 15 to the claim occurs within the filing period.” Antonius, 103 P.3d at 734 (quoting Nat’l R.R. 16 Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). In such a case, “the entire time period of 17 the hostile work environment may be considered by a court for the purposes of determining 18 liability.” Id. (quoting Morgan, 536 U.S. at 117). So, to determine whether a WLAD claim is 19 timely based on a hostile work environment theory, the Court must “determine whether the acts 20 about which an employee complains are part of the same actionable hostile work environment 21 practice, and if so, whether any act falls within the statutory time period.” Loeffelholz, 285 P.3d 22 at 858 (quoting Antonius, 103 P.3d at 737). While the discriminatory acts “must have some 23 relationship to each other,” “[t]he standard for linking discriminatory acts together in the hostile 24 work environment context is not high.” Id. at 859. ORDER ON MOTION FOR SUMMARY JUDGMENT - 13 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 14 of 16 1 “Conduct that supports a hostile work environment claim must be so pervasive as to alter 2 the terms and conditions of employment and create an abusive working environment.” Clarke v. 3 State Att’y Gen.’s Off., 138 P.3d 144, 154 (Wash. Ct. App. 2006); accord Loeffelholz, 285 P.3d 4 at 859 (quoting Antonius, 103 P.3d at 732); Glasgow v. Ga.-Pac. Corp., 693 P.2d 708, 712 5 (Wash. 1985). “The conduct must be both objectively abusive and subjectively perceived as 6 abusive by the victim.” Clarke, 138 P.3d at 154. Courts applying Washington law to hostile work 7 environment claims consider “the totality of the circumstances, including the frequency and 8 severity of harassing conduct, whether it was physically threatening or humiliating, or merely an 9 offensive utterance, and whether it unreasonably interfered with the employee’s work 10 performance.” Alonso v. Qwest Commc’ns Co., LLC, 315 P.3d 610, 619 (Wash. Ct. App. 2013) 11 (citing Washington v. Boeing Co., 19 P.3d 1041, 1046–47 (Wash. Ct. App. 2000)); accord 12 Loeffelholz, 285 P.3d at 859 (holding that conduct underlying a hostile work environment claim 13 is evaluated “with regard to the totality of the circumstances” (quoting Antonius, 103 P.3d at 14 732)). With regard to offensive comments, “[h]umiliation, emotional distress, absence from 15 work, or ‘friction’ with other employees are sufficient to create an ‘inference’ that such reactions 16 resulted from a hostile work environment.” Coles v. Kam-Way Transp., No. 75471–8–I, 2017 17 WL 3980563, at *5 (Wash. Ct. App. Sept. 11, 2017) (quoting Davis v. W. One Auto Grp., 166 18 P.3d 807, 812 (Wash. Ct. App. 2007)). 19 Here, construing the facts in the light most favorable to Plaintiff, a reasonable jury could 20 conclude that the conduct experienced by Plaintiff was so pervasive as to alter the terms and 21 conditions of his employment and create an abusive working environment. 22 The three years prior to Plaintiff filing his lawsuit on April 15, 2022 (see Dkt. No. 1), are 23 within the statute of limitations period. Plaintiff’s demotion occurred after April 15, 2019, and as 24 this Court explained in its prior Order, “that alone [suffices] to link the prior alleged ORDER ON MOTION FOR SUMMARY JUDGMENT - 14 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 15 of 16 1 discriminatory acts into a single claim.” Dkt. No. 35 at 8; see Loeffelholz, 285 P.3d at 859 2 (holding that the standard to link acts is “not high”). Notably, while Plaintiff’s manager did 3 change at the start of the limitations period, his new manager was not just any manager: It was 4 Beltz, the very person about whom Plaintiff complained to Svoboda, the old manager, thus 5 giving rise to Plaintiff’s retaliation claim. See Dkt. No. 31 at 51–52 (90:21–91:20); see also Dkt. 6 No. 38 at 41 (April 18 email from Beltz to Svoboda upon Plaintiff’s acceptance of reassignment: 7 “We will need to discuss next steps if you have time for a quick call today.”). 8 9 10 11 Further, Defendant does not dispute that acts prior to April 15, 2019, were discriminatory; it argues only about the sufficiency of the post-April 15, 2019, allegations. See Dkt. No. 30 at 9–10. Those uncontested allegations include: • He was not provided the training typically provided to someone in a new position. Dkt. No. 37 ¶ 33. • He was required to comply with restrictions on remote work that applied to new, probationary employees. Id. ¶ 34. • He was moved out of his office and assigned to a cubicle known by employees as “the Green Mile” because of the older workers who sat there. Id. ¶ 35. • His supervisor pressured him to withdraw from long-time volunteer roles at the company, took away his volunteer budget when he refused, and involved the new BIPLC director in the pressure campaign. Id. ¶ 36. His supervisor demanded information about his volunteer mentor relationships. Id. • He was “awarded” three “tokens for free ice cream” at the company cafeteria after completing a significant assignment. Id. ¶ 38. • He was wrongly accused in a performance review of misrepresenting a work deadline. Id. ¶ 39. • His supervisor was often late joining calls with him and appeared distracted or did something else like making lunch or eating. Id. ¶ 40. 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER ON MOTION FOR SUMMARY JUDGMENT - 15 Case 2:22-cv-00533-TL Document 44 Filed 08/08/23 Page 16 of 16 1 This Court held in its prior Order that Plaintiff had “adequately alleged a hostile work 2 environment that began before—and continued into—the limitations period.” Dkt. No. 35 at 9. 3 Now on summary judgment, the Court holds that (1) Plaintiff has presented evidence sufficient 4 to raise a genuine issue of material fact as to whether he was subjected to a hostile work 5 environment, and (2) a reasonable jury could conclude that these allegations are not “casual, 6 isolated or trivial manifestations of a discriminatory environment,” but rather the emblems of a 7 sustained and deliberate campaign. Glasgow, 693 P.2d at 712; see also Ray v. Henderson, 217 8 F.3d 1234, 1245–46 (9th Cir. 2000) (reversing summary judgment for defendant on retaliatory 9 hostile work environment claim where plaintiff experienced verbal abuse, pranks, false 10 accusation of misconduct, and isolation by supervisors). Accordingly, as to Plaintiff’s retaliatory hostile work environment claim, the Court 11 12 DENIES the motion. 13 14 15 16 IV. CONCLUSION For the reasons above, the Court DENIES Defendant’s Motion for Summary Judgment (Dkt. No. 30). Dated this 8th day of August 2023. A 17 18 Tana Lin United States District Judge 19 20 21 22 23 24 ORDER ON MOTION FOR SUMMARY JUDGMENT - 16
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