Higley v. Tulsa Dental Products, LLC, No. 2:2015cv00260 - Document 61 (E.D. Wash. 2018)
Court Description: ORDER denying 25 Defendant's Motion for Summary Judgment; denying in part 35 Motion to Strike ; and denying as moot 37 Motion to Expedite. The hearing set for 2/15/2018 is stricken from the Court's calendar. Signed by Chief Judge Thomas O. Rice. (BF, Paralegal)
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1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 GARY HIGLEY, an individual, NO. 2:15-CV-0260-TOR 8 9 10 11 12 Plaintiff, ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. TULSA DENTAL PRODUCTS, LLC, a Delaware limited liability corporation, Defendant. 13 BEFORE THE COURT is Defendant’s Motion for Summary Judgment. 14 ECF No. 25. Also before the Court is Plaintiff’s Motion to Strike & Notice of 15 Intent to Dismiss Disability Discrimination Claim. ECF No. 35. The Court has 16 reviewed the record and files herein, and is fully informed. These matters were 17 heard without oral argument, the Court determined pursuant to LR 7.1(h)(3)(B)(iv) 18 that oral argument is not warranted. The hearing scheduled for February 15, 2018 19 is cancelled. For the reasons discussed below, Defendant’s Motion for Summary 20 Judgment (ECF No. 25) is DENIED. ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 1 2 BACKGROUND Plaintiff Gary Higley commenced this action against Defendant Tulsa Dental 3 Products LLC (“TDP”) for age discrimination in violation of the Washington Law 4 against Discrimination (“WLAD”) RCW § 49.44.090 and § 49.60.180, and 5 disability discrimination in violation of RCW § 49.60.180. ECF No. 3 at ¶¶ 4–5. 6 Defendant moves for summary judgment on all claims. ECF No. 25. Plaintiff 7 filed a Notice of Intent to Dismiss Disability Claim, and thus the Court will only 8 consider Plaintiff’s age discrimination claim. ECF No. 35. 9 FACTS 10 The following are the undisputed facts unless otherwise noted. In 2002, Mr. 11 Higley was hired by TDP as an Outside Sales Manager at the age of 58. ECF Nos. 12 26 at ¶ 1; 29 at ¶¶ 1, 3. Mr. Higley was interviewed by Steve Andregg and Joe 13 Wright, but the parties dispute who made the final hiring decision. ECF Nos. 26 at 14 ¶ 2; 29 at ¶ 2. In 2004, Mr. Higley was promoted to Senior Outside Territory 15 Manager and his supervisor was Joe Wright. ECF No. 29 at ¶¶ 5–6. In 2007, he 16 was promoted to Executive Territory manager at age 63. ECF Nos. 26 at ¶ 3; 29 at 17 ¶ 7; 26-1 at 107 (Ex. E). Mr. Higley was supervised by Vanessa Bourgeois and 18 then by Stewart Walline in late 2010 or early 2011. ECF Nos. 26 at ¶ 4; 29 at ¶¶ 8, 19 17. Mr. Andregg was Ms. Bourgeois’ supervisor and TDP’s West Area Sales 20 Manager. ECF Nos. 26 at ¶¶ 4–5; 29 at ¶ 13. Defendant asserts that Mr. Higley ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 could not have been promoted without Mr. Andregg’s approval and Mr. Higley 2 agreed that he believed Mr. Andregg had to approve his second promotion. ECF 3 Nos. 26 at ¶ 6; 29 at ¶ 11. 4 Mr. Higley’s responsibilities as an Executive Territory Manager were 5 “account management, business development and achieving quota.” ECF Nos. 26 6 at ¶ 7; 26-1 at 109 (Ex. F). Key Performance Indicators (“KPIs”) are the required 7 number of sales calls each day. ECF No. 25 at 2. In 2011 and 2012, each 8 salesperson had a target of eight KPIs per day. ECF Nos. 26 at ¶ 26; 29 at ¶ 21. 9 The amount was increased to ten KPIs in 2013. ECF No. 26 at ¶ 27. In 2008, Mr. 10 Higley failed to meet his yearly quota. Id. at ¶ 31. Mr. Higley made his quota in 11 2009 and improved his KPIs, but did not meet his quota in 2010. ECF Nos. 26 at 12 ¶¶ 34–35, 39; 29 at ¶ 19. 13 In November 2011, Mr. Walline issued Mr. Higley a written notice stating 14 that his job performance required immediate improvement. ECF Nos. 26 at ¶ 41; 15 29 at ¶ 26; 26-1 at 157 (Ex. Q). Mr. Higley asserts that in December 2011, Mr. 16 Walline emailed Debbie Yoder, an employee at TDP’s Human Resources, 17 regarding Mr. Higley’s health issues and whether these ailments “would prevent 18 Gary from being let go due to his performance issues?” ECF Nos. 29 at ¶ 28; 27 at 19 141–42 (Ex. G). Ms. Yoder does not recall if she followed the normal course of 20 action by looking into his performance, requesting information regarding his ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 performance, or requesting information regarding past disciplinary action. ECF 2 Nos. 29 at ¶ 29; 25 at 104–05 (Ex. C); 31-3 at ¶ 3. 3 At the end of 2011, Mr. Higley did not meet his sales quota. ECF No. 26 at 4 ¶ 43. In January 2012, Mr. Higley was put on a Developmental Action Plan 5 (“DAP”) focused on new products sales and was issued a final written notice. ECF 6 Nos. 26 at ¶ 46; 29 at ¶ 34; 26-1 at 168–70 (Ex. T). Mr. Higley asserts that he 7 exceeded his quota in January, February, March, and April 2012. ECF No. 29 at ¶ 8 51. Defendant notes that in February 2012, TDP revised Mr. Higley’s DAP to 9 reflect a reduced expectation of selling eight specified products per month rather 10 11 than ten. ECF No. 26 at ¶¶ 46, 50; 26-1 at 112–13 (Ex. G). Defendant contends that in March 2012, Mr. Higley had multiple KPI entries 12 for the same customer, but this should only count as one KPI. ECF Nos. 26 at ¶¶ 13 52–53.; 26-1 at 182 (Ex. W). Mr. Andregg recommended termination at this time. 14 ECF No. 26-1 at 182 (Ex. W). On April 4, 2012, Mr. Andregg and Ms. Yoder had 15 a call with Mr. Higley to discuss that he was not meeting the company’s 16 expectations. ECF Nos. 26 at ¶¶ 59–60; 26-1 at 190–92 (Ex. Y). 17 In May 2012, Matthew Burns became Mr. Higley’s supervisor at the age of 18 33. ECF Nos. 26 at ¶ 62; 29 at ¶¶ 44, 46. Mr. Burns kept Mr. Higley on the DAP. 19 ECF Nos. 26 at ¶ 63; 29 at ¶ 66. While Defendant agrees that Mr. Higley was 20 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 exceeding quota, Defendant contends that he was failing to meet new product sales 2 expectations and was not hitting his KPI target. ECF No. 26 at ¶ 63. 3 Since December 2011, Mr. Higley suffered back pain. ECF No. 29 at ¶ 67. 4 From July 31, 2012 to September 4, 2012, Mr. Higley was on FMLA leave for 5 back surgery. ECF Nos. 26 at ¶ 69; 29 at ¶¶ 68–70; 26-1 at 213 (Ex. DD). Upon 6 his return, he had a lifting and carrying restriction of 25 pounds. ECF Nos. 26 at ¶ 7 70; 29 at ¶ 76; 26-1 at 216 (Ex. EE). Mr. Higley alleges that he requested a 8 reduction in KPIs because he had to break down his materials for visits to his 9 clients so that he would be able to carry them, meaning he was making less calls 10 per day. ECF No. 29 at ¶ 79. Mr. Higley asserts that Mr. Burns denied his request. 11 Id. at ¶¶ 80–81. 12 In January 2013, Mr. Burns issued Mr. Higley a Second Final Written 13 Counseling, outlining Mr. Higley’s deficient performance. ECF Nos. 26 at ¶ 81; 14 29 at ¶ 99; 26-1 at 200–01 (Ex. Z). In March 2013, Mr. Andregg again 15 recommended that Mr. Higley be terminated. ECF No. 31-2 at 8 (Ex. A). In April 16 2013, Ms. Yoder sent an email to TDP’s HR Director requesting approval for Mr. 17 Higley’s termination. ECF Nos. 29 at ¶¶ 105, 107; 26-1 at 255 (Ex. NN). The 18 request was approved on April 5, 2013 and Mr. Higley was terminated at age 68. 19 ECF Nos. 26 at ¶¶ 85–86; 29 at ¶¶ 108–09; 25 at 16; 26-1 at 257 (Ex. OO). Mr. 20 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 Higley was replaced by Jonathan Meyers, who is under 40 years old. ECF No. 29 2 at ¶ 110. 3 4 DISCUSSION Summary judgment is appropriate when “there is no genuine dispute as to 5 any material fact and the movant is entitled to judgment as a matter of law.” Fed. 6 R. Civ. P. 56(a). For purposes of summary judgment, a fact is “material” if it 7 might affect the outcome of the suit under the governing law. Anderson v. Liberty 8 Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact is “genuine” where the 9 evidence is such that a reasonable jury could find in favor of the non-moving party. 10 Id. The moving party bears the initial burden of showing the absence of any 11 genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 12 (1986). The burden then shifts to the non-moving party to identify specific facts 13 showing there is a genuine issue of material fact. Anderson, 477 U.S. at 256. 14 In ruling on a motion for summary judgment, the court views the facts, as 15 well as all rational inferences therefrom, in the light most favorable to the non- 16 moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The court must only 17 consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 18 (9th Cir. 2002). There must be evidence on which a jury could reasonably find for 19 the plaintiff and a “mere existence of a scintilla of evidence in support of the 20 plaintiff’s position will be insufficient.” Anderson, 477 U.S. at 252. ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 2 A. Age Discrimination The WLAD protects employees age 40 and over from discrimination on the 3 basis of age. RCW §§ 49.44.090, 46.60.180. Under the McDonnell Douglas 4 framework, Washington courts use a burden shifting analysis in cases alleging 5 employment discrimination under the WLAD. Mikkelsen v. Pub. Util. Dist. No. 1 6 of Kittitas Cty., 189 Wash.2d 516, 527 (2017) (citation omitted); see also 7 McDonnel Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). A plaintiff has the 8 initial burden of proving a prima facie case, which creates a presumption of 9 discrimination. Scrivener v. Clark Coll., 181 Wash.2d 439, 446 (2014). 10 The burden then shifts to defendant who must present evidence that the 11 plaintiff was terminated for a legitimate and nondiscriminatory reason. Id. The 12 plaintiff must then show that the proffered reason is a pretext for discrimination. 13 Id. “Evidence is sufficient to overcome summary judgment if it creates a genuine 14 issue of material fact that the employer’s articulated reason was a pretext for a 15 discriminatory purpose.” Id. (citations omitted). The Washington Supreme Court 16 has noted that “[s]ummary judgment for an employer is seldom appropriate in 17 employment discrimination cases because of the difficulty of proving 18 discriminatory motivation.” Mikkelsen, 189 Wash.2d at 427–28 (citing Scrivener, 19 181 Wash.2d at 445). A plaintiff may overcome summary judgment merely by 20 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 showing “that a reasonable jury could find that discrimination was a substantial 2 factor in the employer’s adverse employment action.” Id. (citation omitted). 3 The Court will apply the foregoing analysis to Mr. Higley’s age 4 discrimination claim. 5 1. Prima Facie Case 6 A plaintiff must show that: (1) he was within the statutorily protected age 7 group; (2) was discharged by defendant; and (3) was doing satisfactory work.1 Id. 8 at 470–71. At the summary judgment stage, a plaintiff’s prima facie burden is 9 minimal and “does not even need rise to the level of a preponderance of the 10 evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). 11 Here, Defendant contends that Mr. Higley cannot establish that he was doing 12 satisfactory work. ECF No. 25 at 13. The Court finds the other elements of the 13 prima facie case are met, as Mr. Higley was 68 years old when terminated by 14 Defendant. ECF No. 25 at 16. In determining satisfactory work, TPD measures 15 performance standards by meeting or exceeding quota, selling a baseline of new 16 products each month, and recording a target number of KPI’s each day. Id.; 28 at 17 18 1 The final requirement that a plaintiff must prove he was replaced by a person 19 outside his protected group is no longer required to establish a prima facie case of 20 discrimination under the WLAD. See Mikkelsen, 189 Wash.2d 528. ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 6. Defendant emphasizes that Mr. Higley failed to meet TDP’s performance 2 standards for several years. ECF No. 25 at 13. 3 Yet, Plaintiff contends that the question is whether an employee’s 4 performance is satisfactory at the time of the termination decision and thus his 5 performance three to four years prior is immaterial. ECF No. 28 at 5; Griffith v. 6 Schnitzer Steel Indus., Inc., 128 Wash. App. 438, 449 n.6 (2005). Defendant 7 disputes Plaintiff’s reading of Griffith and argues that the case does not support 8 Plaintiff’s argument. ECF No. 30 at 2–3. Griffith supports Plaintiff’s claim that 9 the pertinent timeframe does not include prior years. The court in Griffith stated, 10 “The ultimate question for the fact-finder, assuming the employee has met the 11 other elements of a prima facie case, is whether the employee was performing 12 adequately when he was terminated[.]” Griffith, 128 Wash. App. at 449 n.6. The 13 court found that “[b]ecause satisfactory performance is viewed in light of all the 14 evidence presented, summary judgment for the employer on this basis will rarely, 15 if ever, be appropriate.” Id. The Court will thus consider the more recent evidence 16 regarding Mr. Higley’s performance as more persuasive. 17 The first element measured by Defendant is quota. Plaintiff argues that, at 18 the time of his termination, Mr. Higley was exceeding his required quota. ECF 19 No. 28 at 6. While Defendant notes that Mr. Higley’s 2012 sales results 20 demonstrated that he was meeting expectations, Defendant emphasizes that ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 meeting this quota in 2012 does not negate the deficiencies in new product and 2 KPIs. ECF No. 25 at 14. Defendant asserts that TDP has the right to require that 3 its salespeople satisfy all performance metrics regardless of sales being generated. 4 Id.; 30 at 4. Defendant argues that quota attainment alone is not sufficient to 5 achieve satisfactory job performance. ECF No. 30 at 4. The Court does not 6 dispute that all three measurements are required to show satisfactory work and thus 7 considers the other two factors below. 8 The second measurement is new sales and Plaintiff argues that his new 9 products sales were comparable to his team and improving. Plaintiff asserts that in 10 February 2012, new products, not KPIs, were the main focus of his DAP. ECF No. 11 28 at 7. Plaintiff notes that as of February 5, 2013, half of Mr. Higley’s team was 12 not meeting the three motors per month requirement and only one out of eight team 13 members had met the three ovens per month requirement. Id. at 8. Plaintiff 14 contends that there is no evidence that anyone other than Mr. Higley was 15 disciplined for not meeting these company goals. Id. Plaintiff also emphasizes 16 that three days prior to his termination, Mr. Burns sent a team-wide email showing 17 that Mr. Higley sold eight motors and eleven ovens, which was comparable to the 18 seven individuals on his team. Id.; 27 at 205 (Ex. U). Yet, Defendant asserts that 19 while Plaintiff’s new products sales improved from zero, he was still not meeting 20 the required three motors and ovens per month. ECF No. 30 at 4. Defendant ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 argues that “[s]poradic improvement does not equate to overall success.” Id. 2 Defendant rejects Plaintiff’s argument regarding other members of his team, 3 asserting that it is not relevant to Mr. Higley’s performance. Id. 4 In regards to the third element of KPIs, Plaintiff contends that many TDP 5 sales representatives struggled with KPI compliance and were not disciplined. 6 ECF No. 28 at 9. Plaintiff states that he did not receive any negative feedback 7 related to KPI compliance for 2011 until his review in May 2012, but all sales 8 representatives were deficient in KPI performance in 2011. Id.; 27 at 133 (Ex. E). 9 In February 2012, Mr. Higley’s KPIs were at the company average of 3.95 calls 10 per day out of a target of 8. ECF Nos. 28 at 9; 26-1 at 175–76 (Ex. V). Defendant 11 again rejects the relevance of other sales representatives’ deficiencies. ECF No. 30 12 at 5. Defendant emphasizes that TDP requires all of its outside sales 13 representatives to complete the same number of KPIs per day and Mr. Higley was 14 not consistently meeting those standards. Id. 15 The Court finds that Plaintiff is able to establish a prima face case. 16 Plaintiff’s burden is minimal and he provided sufficient evidence to show he met 17 the expectations for his 2012 sales results, as admitted by Defendant. ECF No. 25 18 at 13. Mr. Higley also established that his work was likely satisfactory under the 19 quota and KPI metrics, as his efforts were comparable to other salespeople. The 20 Court acknowledges Defendant’s misgivings about comparing Mr. Higley to other ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 members of his team, but the Court finds it is instructive to show that Mr. Higley 2 was meeting or exceeding the standards of those in his area even if he was not 3 always meeting the nationwide standards set by TDP. The Court determines that 4 Plaintiff is able to establish a prima facie case for age discrimination as he met the 5 minimal burden of showing that his work was satisfactory. The Court then 6 proceeds to consider the subsequent components of the burden shifting analysis. 7 2. Legitimate Nondiscriminatory Reasons 8 The burden now shifts to Defendant to rebut the inference of discrimination 9 and present evidence that Mr. Higley was terminated for a legitimate, 10 nondiscriminatory reason. See Scrivener, 181 Wash.2d at 446. Here, Defendant 11 contends that even if Mr. Higley is able to establish a prima facie case of 12 discrimination, the presumption established by that evidence fails in light of TDP’s 13 production of Mr. Higley’s well-documented performance deficiencies. ECF No. 14 25 at 15. Defendant emphasizes that these deficiencies spanned several years and 15 were observed and documented independently by four different supervisors and 16 Mr. Andregg. Id. 17 Plaintiff disputes Defendant’s nondiscriminatory reasons, arguing that these 18 reasons for termination are pretextual. Therefore, for the purposes of the burden 19 shifting analysis, the Court finds Defendant has satisfied its burden to rebut any 20 inference of discrimination. Defendant established legitimate, nondiscriminatory ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 reasons for Mr. Higley’s termination, such as the alleged deficiencies in new 2 product sales and KPIs. 3 3. Pretext 4 An employee can show that the employer’s stated reasons for termination 5 are pretextual and unworthy of belief “with evidence that: (1) the employer’s 6 reasons have no basis in fact; or (2) even if the reasons are based on fact, the 7 employer was not motivated by the reasons; or (3) the reasons are insufficient to 8 motivate the adverse employment decision.” Chen v. State, 86 Wash. App. 183, 9 190 (1997). Pretext may also be demonstrated by evidence showing that an 10 employee was treated differently than similarly situated employees. Vasquez v. 11 Cty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). Circumstantial or 12 inferential evidence may be sufficient to establish pretextual motive, Mikkelsen, 13 189 Wash.2d at 526, however, an employee’s subjective belief about his 14 performance is not relevant, Aragon v. Republic Silver State Disposal Inc., 292 15 F.3d 654, 660 (9th Cir. 2002) (citing Bradley v. Harcourt, Brace & Co., 104 F.3d 16 267, 270 (9th Cir. 1996)). If there is no evidence of pretext the defendant is 17 entitled to dismissal as a matter of law, but if there is evidence of pretext then the 18 case must go to the jury. See Kastanis v. Educ. Employees Credit Union, 122 19 Wash.2d 483, 490 (1993). 20 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 Here, Defendant asserts that Mr. Higley’s termination was the direct result 2 of his job performance and he cannot establish pretext. ECF No. 25 at 16. 3 Defendant contends its reasoning is not pretextual under the “same actor” theory. 4 Id. “When an employee is both promoted and fired by the same decisionmakers 5 within a relatively short period of time, there is a strong inference that he or she 6 was not fired due to any attribute the decisionmakers were aware of at the time of 7 the promotion.” Griffith, 128 Wash. App. at 453 (emphasis added). Plaintiff 8 argues that this theory does not apply here because Defendant is unable to establish 9 a relatively short period of time between the promotion and termination. ECF No. 10 28 at 12. Mr. Higley was last promoted in 2007 and was terminated in 2013. ECF 11 Nos. 26 at ¶¶ 3, 85–86; 29 at ¶¶ 7, 108–09. Yet, Defendant contends that this time 12 period does not negate the defense. ECF No. 30 at 7. 13 In Griffith, there was a lapse of five years between the promotion and firing, 14 which the court found not significant. Griffith, 128 Wash. App. at 454 (from age 15 52 to age 57). While the court determined that a short period of time was not an 16 essential element, it also noted that “[o]ver the years, an individual may develop an 17 animus towards a class of people that did not exist when the hiring decision was 18 made.” Id. (quoting Buhrmaster v. Overnite Transp. Co.¸ 61 F.3d 461, 464 (6th 19 Cir. 1995)). Time can weaken this defense and the Court finds here that a period 20 of nearly six years, from age 63 to age 68, can sufficiently weaken the same actor ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 theory. Six years is an extended period of time where it is possible that although 2 the employer may not have had anything against the protected class per se when 3 hiring the member, this does not mean that the employer had nothing against the 4 class when firing him. See id. (quoting Buhrmaster, 61 F.3d at 464). 5 Defendant also argues that Mr. Higley’s age played no part in his 6 employment at TDP. ECF No. 25 at 16. Defendant asserts that TDP hired Mr. 7 Higely at age 58, promoted him at 63, and provided him with multiple 8 opportunities to correct his performance deficiencies before his termination at age 9 68. Id. Defendant states that the standards applied to Mr. Higley were the same 10 standards that applied to all of TDP’s outside sales representatives. Id. Defendant 11 emphasizes that TDP gave Mr. Higley a year to improve his performance, sent him 12 to additional training, provided him a list of contacts for potential sales, 13 encouraged him to contact another representative that had a solid new products 14 pipeline, and gave him continued feedback on his performance. Id. at 17. 15 Plaintiff responds that Defendant’s proffered reason for termination applied 16 to other individuals for which TDP made a different decision. ECF No. 28 at 12; 17 see Vasquez, 349 F.3d at 641 (9th Cir. 2003). Plaintiff asserts that Mr. Burns, who 18 held the same position of Executive Outside Territory Manager in late March 2012, 19 had an inferior performance to Mr. Higley in quota attainment. ECF No. 28 at 13. 20 Mr. Burns was ranked below Mr. Higley in new products sold, but he was ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 promoted in April 2012 to Regional Sales Manager at age 33. Id. Plaintiff 2 emphasizes that Mr. Burns never received a verbal warning, written warning, or 3 DAP for his inferior performance. Id. Mr. Burns was promoted by Mr. Andregg, 4 but Mr. Higley was disciplined by Mr. Andregg. Id. Additionally, Plaintiff notes 5 that just before his termination, Mr. Higley was performing similarly to those in his 6 region in new product sales and that no one else on his team demonstrated the 7 same improvement. Id. at 14. 8 Defendant asserts that Mr. Burns met or exceeded TDP’s expectations each 9 year between 2007 and 2010, and engaged in activities to put himself on track for 10 promotion such as electing to participate in the emerging leaders program, 11 engaging in mentoring activities, and helping new hires. ECF Nos. 30 at 8; 31-1 at 12 60 (Ex. D). Defendant concedes that Mr. Burns’ performance dipped in 2011 and 13 early 2012, but this was due to a family matter and cannot be used to infer 14 discriminatory intent with respect to Mr. Higley. ECF Nos. 30 at 8; 30-1 at 64–65. 15 The Court acknowledges that Mr. Burns’ situation is not comparable because his 16 low numbers in the specific timeframe were due to a family tragedy. 2 Defendant 17 18 2 19 to his decision to promote Mr. Burns. ECF No. 35. Plaintiff argues that Mr. 20 Andregg failed to disclose Mr. Burns had extenuating circumstances affecting his Plaintiff moves to strike Mr. Andregg’s testimony (ECF No. 31-2) relating ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 also notes that a similarly situated sales representative, Scott Hoover who was then 2 29 years old, exceeded his quota but was deficient in new product sales and KPIs. 3 ECF No. 30 at 7. Mr. Hoover was warned of his deficient performance and then 4 terminated the following month.3 Id. 5 6 performance leading up to his promotion. Id. at 5. Defendant asserts it is 7 responding to Plaintiff’s argument that Mr. Higley and Mr. Burns were similarly 8 situated employees. ECF No. 51 at 5. The Court notes that Plaintiff was aware of 9 Mr. Burns’ testimony regarding his family tragedy. ECF No. 31-1 at 4. Plaintiff 10 also had the opportunity to question Mr. Andregg as to why he promoted Mr. 11 Burns in spite of his deficient performance. The Court finds that Defendant did not 12 unfairly wait to present this evidence after the close of discovery, as Plaintiff was 13 aware of Mr. Burns’ deficient performance and the reason for this deficiency. 14 Accordingly, the Court denies Plaintiff’s Motion to Strike. ECF No. 35. 15 3 16 and other information regarding Scott Hoover as a comparator. ECF No. 35. 17 Defendant uses this evidence to refute Plaintiff’s claim that no one but Mr. Higley 18 was placed on DAP. ECF No. 51 at 2. Yet, Plaintiff asserts that the time period 19 for when no one but Mr. Higley was placed on DAP is different than the time 20 period regarding Mr. Hoover, and thus the information is irrelevant. ECF No. 59 Plaintiff moves to strike the Declaration of Audra Braden (ECF No. 31-4) ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 Additionally, Plaintiff argues that Mr. Higley’s age was a substantial 2 motivating factor in his termination, satisfying his burden to demonstrate pretext. 3 ECF No. 28 at 14. Plaintiff asserts that he need not establish animus to prevail on 4 summary judgment. Id. at 14–15. Plaintiff states that Mr. Andregg was hesitant to 5 hire Mr. Higley because of his age, which “ultimately manifested into a campaign 6 to terminate Mr. Higley regardless of Mr. Higley’s performance.” ECF No. 28 at 7 15. Plaintiff asserts that Mr. Andregg and Mr. Burns made age-related comments 8 to Mr. Higley, such as why he was still working when he collected social security. 9 ECF Nos. 28 at 15; 26-1 at 52, 54. Defendant asserts that these comments were 10 never made and, even if they were, the statements do not establish pretext. ECF 11 12 at 3. Plaintiff also argues that Mr. Hoover was not available to him during 13 discovery. Plaintiff notes that while Mr. Hoover was listed as an employee 14 terminated by reason of “involuntary for cause,” it was unclear to Plaintiff what 15 this term meant. Id. at 4. The Court finds that including evidence of Mr. Hoover 16 still does not negate a material question of fact regarding pretext for discrimination 17 when there is no evidence concerning how Mr. Hoover is a similarly situated 18 employee, such as his region or title as compared to Mr. Higley. Accordingly, 19 Plaintiff’s Motion to Strike (ECF No. 35) is denied as moot. 20 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 Nos. 25 at 17–18; 30 at 8. The Court does not consider these disputed statements 2 for purposes of this decision. 3 The Court is mindful that under Washington law, summary judgment in 4 favor of the employer is “seldom appropriate” due to the difficulty of proving 5 discriminatory motivation. Mikkelsen, 189 Wash.2d 527-28 (citing Scrivener, 181 6 Wash.2d at 445). The Court finds that Plaintiff has established evidence of pretext. 7 Mr. Higley provided evidence that he was performing similarly to those in his 8 region in new product sales, and Defendant’s example of a possible similarly 9 situated individual who was terminated is not sufficient to overcome Plaintiff’s 10 evidence. ECF Nos. 28 at 14; 29 at ¶ 104; 27 at 205 (Ex. U). While Mr. Higley 11 demonstrated improvement in February 2013, other members of his team who did 12 not demonstrate the same improvement were not subject to discipline or 13 termination. ECF Nos. 28 at 14. 14 The Court finds that Plaintiff meets the low bar to establish evidence of 15 pretext, as there is a reasonable inference of discrimination. The Court finds that 16 Mr. Burns’ emails are persuasive in showing pretext. In December 2012, Mr. 17 Andregg told Mr. Burns, “Remember you need to create and document the paper 18 trail. You’ve done a good job with him. Now it’s time to ramp it up on him. 19 Enough is enough.” ECF No. 27 at 191 (Ex. P). This evidence establishes a 20 reasonable question of material fact that TDP’s reasoning is pretextual for ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 discrimination considering the performance of other similarly situated sales 2 representatives. As Plaintiff establishes his prima facie case and rebuts TDP’s 3 nondiscriminatory reasoning for termination as pretextual, the Court determines 4 that a reasonable jury could find discrimination was a substantial factor in Mr. 5 Higley’s termination. 6 Accordingly, the Court denies Defendant’s request to dismiss Plaintiff’s age 7 discrimination claim. 8 ACCORDINGLY, IT IS HEREBY ORDERED: 9 1. Defendant’s Motion for Summary Judgment (ECF No. 25) is DENIED. 10 2. Plaintiff’s Motion to Strike & Notice of Intent to Dismiss Disability 11 Discrimination Claim (ECF No. 35) is DENIED in part. Plaintiff’s 12 Notice of Intent to Dismiss Disability Discrimination Claims is 13 acknowledged and requires no ruling. Plaintiff’s Motion to Strike is 14 DENIED. 15 3. Plaintiff’s Motion to Expedite (ECF No. 37) is DENIED as moot. 16 The District Court Executive is directed to enter this Order and furnish 17 18 copies to counsel. DATED February 4, 2018. 19 20 THOMAS O. RICE Chief United States District Judge ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20
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