Hubbard v. State of Washington Department of Corrections, No. 3:2013cv05982 - Document 66 (W.D. Wash. 2014)

Court Description: ORDER GRANTING MOTION FOR SUMMARY JUDGMENT, granting 46 . Signed by Judge Robert J. Bryan. (JL)

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Hubbard v. State of Washington Department of Corrections Doc. 66 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 SAMANTHA HUBBARD, Plaintiff, 12 13 14 15 CASE NO. 13-5982 RJB ORDER GRANTING MOTION FOR SUMMARY JUDGMENT v. STATE OF WASHINGTON DEPARTMENT OF CORRECTION, Defendant. 16 This matter comes before the Court on the Defendant State of Washington Department of 17 Correction’s (“DOC” or “State”) Motion for Summary Judgment (Dkt. 46) and Plaintiff’s 18 “Counter Motion to Defendant’s Motion for Summary Judgment” (Dkt. 64). The Court has 19 considered the pleadings filed regarding the motions and the remaining file. 20 This employment case arises from the June 11, 2012 termination of Plaintiff’s job with 21 the DOC. Dkt. 1. The State now moves to summarily dismiss all Plaintiff’s claims. Dkt. 46. 22 For the reasons set forth below, the State’s motion should be granted and the case dismissed. 23 I. FACTS 24 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com 1 On August 1, 2007, Plaintiff began working as a Classification Counselor at Monroe 2 Correctional Complex in Monroe, Washington. Dkt. 49, at 10. 3 On February 4, 2008, DOC wrote Plaintiff a “letter of concern” regarding her over 34 4 hours of work time used to make personal calls on the State’s telephone system “SCAN.” Dkt. 5 51, at 13. 6 According to the State, Plaintiff’s performance was not meeting expectations, and she 7 was placed on a Performance and Development Plan on November 18, 2008. Dkt. 51, at 15. 8 The plan was developed due to the timeliness of Plaintiff’s reports and errors therein, an increase 9 in offender grievances regarding Plaintiff, and Plaintiff’s attendance. Id. 10 She received a letter of reprimand on May 6, 2009, for failing to complete the essential 11 functions of her job. Dkt. 51, at 21. In her Performance and Development Plan Evaluation, 12 dated July 24, 2009, it was noted that her absenteeism was high (missing on average one day a 13 week), her organization continued to be poor, her reports were still late and contained several 14 errors. Dkt. 51, at 26. 15 In August of 2009, Plaintiff filed a charge with the Equal Employment Opportunity 16 Commission (“2009 EEOC charge”) alleging that her then supervisor, Lisa Howe, discriminated 17 against her due to her race and her daughter’s disability and retaliated against her. Dkt. 48, at 22. 18 The EEOC dismissed the charge on June 9, 2010, unable to conclude that the information it 19 obtained established violations of the relevant statutes. Dkt. 48, at 24. 20 In October of 2009, Plaintiff was assigned to a new unit within the facility, and initially 21 made improvement. Dkt. 51, at 31-32. On October 25, 2010, Plaintiff received another letter of 22 reprimand for excessive use of the State’s telephone system (for several long distance calls) and 23 inappropriate use of the internet. Dkt. 51, at 50. On December 9, 2010, she received a letter of 24 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT- 2 1 reprimand for brining an “empty prescription bottle of oxycodone,” leaving it on the floor in her 2 office (which was located in one of the prison’s units) and for leaving her “institutional keys” on 3 her office’s desk. Dkt. 51, at 38. 4 In December 2011, the State notified Plaintiff that she was under investigation. Dkt. 48, 5 at 26. She was interviewed several times about the allegations which included: misuse of the 6 State’s telephone system and email system, improper use of sick leave, inappropriate use of her 7 DOC badge, and failing to pay for lunches in the staff lounge. Dkt. 48, at 41-44, and 46-51. 8 On April 9, 2012, Plaintiff’s union filed a grievance on her behalf, alleging that the State 9 violated a provision of the collective bargaining agreement when they took over 90 days to 10 complete the investigation without seeking written authorization to extend the time frame. Dkt. 11 48, at 34. A meeting between the State and the union was held, and the union requested “a full 12 make whole remedy, including a conclusion and resolution to the investigation.” Id. In 13 response, the State sent a letter to the union, explaining the reasons for the delay, and indicating 14 that they were working on a final resolution. Id. The State indicated that Plaintiff would be 15 notified as soon as possible. Id. 16 On June 11, 2012, Plaintiff’s employment was terminated. Dkt. 51, at 41. The 17 termination letter lists the following misconduct for which the action was taken: 18 19 20 21 22 23 1. During the period October 1, 2011, through December 31, 2011, you admitted that you used the State's Scan telephone system on multiple occasions for personal telephone calls. 2. On December 23, 2011, you attended Pierce County Superior Court regarding your fugitive warrant out of Louisiana, after you submitted a leave request form on December 20, 2011, that requested Sick Leave on December 23, 2011, for the entire shift. . 3. You wore your Department of Corrections (DOC) badge to Pierce County Superior Court on December 23, 2011, for your personal hearing. 4. During the period December 2011, through January 2012, you admitted you received personal e-mails on your DOC Outlook account on numerous occasions. 24 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT- 3 1 2 3 4 5 5. You admitted to receiving correspondence from Office Assistant 3, Leslie Chu, on January 5, 2012, that was derogatory in nature regarding another staff person. 6. During-the period October 6, 2011 through November 15, 2011, you misappropriated state resources when you recorded coupon numbers on the Staff Lounge Receipt Log that had been purchased and used by other employees, and consumed lunches that you did not pay for on October 6, 7, 14, 18, 28, 2011; and November 2, 7, 10, 15, 16, 2011. 7. You did not submit coupons for the lunches you consumed on October 13, 2011 and October 27, 2011. 6 Dkt. 50, at 41-42. On June 13, 2012, Plaintiff’s union filed a grievance on her behalf regarding 7 her termination. Dkt. 48, at 29. The union withdrew that grievance “after a thorough 8 investigation and review of the case” on January 8, 2013. Dkt. 48, at 32. 9 On January 14, 2013, Plaintiff filed a charge with the EEOC alleging racial 10 discrimination and retaliation for filing the 2009 EEOC charge. Dkt. 48, at 37. The EEOC 11 dismissed the charge, concluding that it was unable to find that the information obtained showed 12 a statutory violation. Dkt. 48, at 39. 13 Plaintiff, acting pro se, filed her Complaint, entitled “Employment Discrimination 14 Complaint,” on November 13, 2013. Dkt. 1. She alleges that she suffered disparate treatment 15 due to her race and that she was retaliated against because she filed a complaint with the Equal 16 Employment Opportunity Commission (“EEOC”). Dkt. 1-1. Plaintiff additionally references 17 due process in connection with the termination of her employment. Id. Plaintiff also filed an 18 “Additional Statement of Facts,” docketed as an Amended Complaint, which references due 19 process and the collective bargaining agreement and “wrongful termination.” Dkt. 13. Much of 20 Plaintiff’s Complaint and subsequent “Additional Statement of Facts”/Amended Complaint are 21 difficult to decipher. 22 On October 14, 2014, Defendant filed the instant motion for summary dismissal of all 23 Plaintiff’s claims, and noted the motion for November 7, 2014. Dkt. 46. Plaintiff then filed a 24 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT- 4 1 pleading that was construed as a motion for an extension of time to: 1) conduct more discovery 2 and 2) file a response to the motion for summary judgment. Dkt. 54. Plaintiff’s motion for an 3 extension of time to conduct further discovery was analyzed as a motion pursuant to Fed. R. Civ. 4 P. 56 (d), and was denied because Plaintiff failed to “identify by affidavit the specific facts that 5 further discovery would reveal, and explain why those facts would preclude summary 6 judgment.” Dkt. 58 (citing Tatum v. City and County of San Francisco, 411 F.3d 1090, 1100 7 (9th Cir. 2006)). Plaintiff’s motion for an extension of time to respond to the summary judgment 8 motion, which Plaintiff noted included hundreds of pages of attachments, was granted and the 9 motion for summary judgment renoted to November 28, 2014. Dkt. 58. The State’s Motion for 10 Summary Judgment is now ripe for review. 11 In the pending motion, the State argues that: (1) Plaintiff’s claims are barred for failure to 12 file her EEOC charge within 180 days of her termination, (2) her discrimination and retaliation 13 claims fail under the McDonnell Douglas burden shifting scheme, and (3) she cannot show a 14 violation of due process or the collective bargaining agreement. Dkt. 46. 15 In Plaintiff’s November 26, 2014 “counter motion” she asserts that “there are several 16 facts in dispute” and simultaneously moves for “all the relief sought in this case.” Dkt. 64. 17 Plaintiff repeatedly argues that the State’s attorneys and various witnesses are not being honest 18 about the facts in the case. Id. She contests the various reasons given for the termination of her 19 employment and asserts that defense counsel is “using her wealth of legal knowledge purely 20 preying on the legal naivety of the plaintiff who is pro se in this case and has little or no legal 21 pedigree.” Id., at 25. 22 The discovery deadline was September 15, 2014 and the dispositive motions deadline 23 was October 14, 2014. Dkt. 26. Trial is set to begin on January 12, 2015. Id. 24 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT- 5 1 II. DISCUSSION 2 A. PLAINTIFF’S LATE FILED PLEADING 3 Pursuant to Local Rule W.D. Wash. 7(d)(3), Plaintiff’s response to the State’s Motion for 4 Summary Judgment was due on November 24, 2014. The dispositive motions deadline was 5 October 14, 2014. Plaintiff filed her response and “counter motion” on November 26, 2014. 6 Plaintiff did not move for an extension of time to file a response or motion for summary 7 judgment. 8 In the interest of fully and fairly considering all issues, the Court should consider the late 9 filed pleading. The Court notes that Plaintiff has requested, and received, an extension of time to 10 respond to the Defendant’s motion for summary judgment. Plaintiff has filed extensive briefing 11 on this motion and related motions. As demonstrated below, no further briefing on any of the 12 issues is necessary. 13 14 B. SUMMARY JUDGMENT STANDARD Summary judgment is proper only if the pleadings, the discovery and disclosure materials on 15 file, and any affidavits show that there is no genuine issue as to any material fact and that the 16 movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is 17 entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient 18 showing on an essential element of a claim in the case on which the nonmoving party has the 19 burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue 20 of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find 21 for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 22 (1986)(nonmoving party must present specific, significant probative evidence, not simply “some 23 metaphysical doubt.”). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a 24 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT- 6 1 material fact exists if there is sufficient evidence supporting the claimed factual dispute, 2 requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty 3 Lobby, Inc., 477 .S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors 4 Association, 809 F.2d 626, 630 (9th Cir. 1987). 5 The determination of the existence of a material fact is often a close question. The court 6 must consider the substantive evidentiary burden that the nonmoving party must meet at trial – 7 e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. 8 Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor 9 of the nonmoving party only when the facts specifically attested by that party contradict facts 10 specifically attested by the moving party. The nonmoving party may not merely state that it will 11 discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial 12 to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). 13 Conclusory, non specific statements in affidavits are not sufficient, and “missing facts” will not 14 be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990). 15 16 C. TIMING OF 2013 EEOC CHARGE AND TITLE VII CLAIMS To establish federal subject matter jurisdiction, a plaintiff is required to exhaust his or her 17 administrative remedies before seeking adjudication of a Title VII claim. B.K.B. v. Maui Police 18 Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002). A Title VII plaintiff must exhaust administrative 19 remedies by filing a timely charge with the EEOC, or the appropriate state agency, thereby 20 affording the agency an opportunity to investigate the charge. 42 U.S.C. § 2000e-5(b). 21 Generally, the charge must be filed with the EEOC “within one hundred and eighty days after the 22 alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1). In a state, like 23 Washington, “that has an entity with the authority to grant or seek relief with respect to the 24 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT- 7 1 alleged unlawful practice, an employee who initially files a grievance with that agency must file 2 the charge with the EEOC within 300 days of the employment practice.” Nat'l R.R. Passenger 3 Corp. v. Morgan, 536 U.S. 101, 109 (2002). “A claim is time barred if it is not filed within these 4 time limits.” Id. 5 Plaintiff’s claims for discrimination and retaliation, brought pursuant to Title VII should 6 be dismissed for failure to timely exhaust her administrative remedies. This Court does not have 7 subject matter jurisdiction over these claims. There is no evidence that Plaintiff instituted 8 proceedings with the Washington State Human Rights Commission or any other state or local 9 agency with authority to grant relief before she filed her charge with the EEOC. Accordingly, 10 she had 180 days from after the date of “alleged unlawful employment practice occurred” to file 11 her charge. 42 U.S.C. § 2000e-5(e)(1). Plaintiff was discharged from employment on June 11, 12 2012. She did not file her EEOC charge until January 14, 2013 – 217 days after her discharge. 13 Plaintiff does not allege (much less point to any evidence) that she suffered discrimination or 14 retaliation contrary to Title VII after her discharge date. Her claims for discrimination and 15 retaliation under Title VII are time barred. The State’s motion (Dkt. 46) should be granted and 16 Plaintiff’s claims for discrimination and retaliation should be dismissed. 17 The Court need not reach the Defendant’s other basis for dismissal of these claims, or 18 Plaintiff’s other arguments that her motion on these claims be granted. To the extent that 19 Plaintiff makes a motion regarding these claims (Dkt. 64), it should be denied. 20 21 D. DUE PROCESS/VIOLATION OF COLLECTIVE BARGAINING AGREEMENT To the extent that Plaintiff asserts a procedural due process violation in connection with the 22 Collective Bargaining Agreement, the State’s motion to dismiss it (Dkt. 46) should be granted, 23 and her claim should be dismissed. 24 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT- 8 1 The Fourteenth Amendment protects individuals from the deprivation of property without 2 due process of law. There are three elements for procedural due process claims under Section 3 1983: (1) a property interest protected by the Constitution; (2) a deprivation of that interest by 4 the government; and (3) a lack of process. Portman v. County of Santa Clara, 995 F.2d 898, 904 5 (9th Cir. 1993). A public employer may meet its due process obligations by providing a 6 collective bargaining agreement if that agreement contains grievance procedures that satisfy due 7 process. Armstrong v. Meyers, 964 F.2d 948, 950 (9th Cir.1992). 8 Plaintiff fails to point to any evidence that her Collective Bargaining Agreement with the 9 State did not contain grievance procedures that satisfy due process. The record shows that under 10 the agreement, when misconduct allegations were made against her, she was notified of them, 11 had an opportunity to be heard, an opportunity to dispute the State’s evidence and an opportunity 12 to file grievances. She has made no showing that her procedural due process rights were 13 violated. The State’s Motion for Summary Judgment on Plaintiff’s due process claim (Dkt. 46) 14 should be granted and the claim dismissed. 15 To the extent that she makes a motion for summary relief on her claim for due process (Dkt. 16 64), it should be denied. She provides no argument or evidence in support of her motion. 17 18 E. VIOLATION OF COLLECTIVE BARGAINING AGREEMENT The State’s motion to summarily dismiss Plaintiff’s claims for violation of the Collective 19 Bargaining Agreement (Dkt. 46) should be granted. To the extent that Plaintiff makes a motion 20 for summary relief on her claim for violation of the Collective Bargaining Agreement (Dkt. 64), 21 it should be denied. 22 To the extent that Plaintiff argues generally that the Collective Bargaining Agreement was 23 violated, she fails to point to any particular provision that was violated, except the provision that 24 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT- 9 1 requires that investigations be conducted in 90 days. She acknowledges, however, that her union 2 grieved the issue. She does not point to any evidence that she was damaged as a result of the 3 alleged violation or that she did not receive the relief she requested. The claim should be 4 dismissed. 5 F. WRONGFUL TERMINATION 6 Section 301 of the Labor Management Relations Act (“LMRA”) provides that all suits 7 seeking relief for violation of a collective bargaining agreement may be brought in federal court. 8 Humble v. Boeing Co., 305 F.3d 1004, 1007 (9th Cir. 2002). The Supreme Court has held in a 9 variety of contexts that § 301 acts to preempt state law claims that: “substantially depend” on a 10 collective bargaining agreement, “that are premised on negotiable or waivable state law duties 11 the content of which has been covered” by a collective bargaining agreement or “that seek to 12 enforce the terms” of a collective bargaining agreement, for example, breach of contract claims. 13 Id. 14 To the extent that Plaintiff asserts a claim for wrongful termination under state law for 15 asserted violations of the Collective Bargaining Agreement, her claim is preempted by § 301 of 16 the LMRA, and so should be dismissed. To the extent that Plaintiff asserts a claim for wrongful 17 termination as a breach of the Collective Bargaining Agreement, Plaintiff fails to identify which 18 provision applies or any evidence in support of her assertions. Plaintiff’s claim for wrongful 19 termination should be dismissed. 20 21 G. CONCLUSION The State’s Motion for Summary for Summary Judgment (Dkt. 46) should be granted. To 22 the extent that Plaintiff moves for summary judgment, (Dkt. 64), her motion should be denied. 23 Plaintiff’s claims should be dismissed and this case closed. 24 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT- 10 1 2 3 III. IT IS ORDERED THAT: 4 5 8 9 Defendant State of Washington Department of Correction’s Motion for Summary Judgment (Dkt. 46) IS GRANTED; 6 7 ORDER Plaintiff’s “Counter Motion to Defendant’s Motion for Summary Judgment” (Dkt. 64) IS DENIED; Plaintiff’s claims are DISMISSED; and This case is CLOSED. The Clerk is directed to send uncertified copies of this Order to all counsel of record and 10 to any party appearing pro se at said party’s last known address. 11 12 13 14 Dated this 1st day of December, 2014. A ROBERT J. BRYAN United States District Judge 15 16 17 18 19 20 21 22 23 24 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT- 11

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