Knight v. Walmart Stores Inc, No. 3:2008cv05746 - Document 71 (W.D. Wash. 2009)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, finding as moot 65 Motion in Limine; finding as moot 66 Motion in Limine; finding as moot 68 Motion for Extension of Time; finding as moot 22 Motion to Dismiss; granting 24 Motion for Summary Judgment. Signed by Judge Robert J. Bryan.(JL)

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Knight v. Walmart Stores Inc Doc. 71 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 11 TERRY L. KNIGHT, Case No. C08-5746RJB Plaintiff, 12 ORDER GRANTING DEFENDANT=S MOTION FOR SUMMARY JUDGMENT v. 13 WAL-MART STORES, INC., 14 Defendant. 15 16 This matter comes before the Court on Defendant=s Motion for Summary Judgment (Dkt. 17 24). The Court has considered the pleadings filed in support of and in opposition to the motion 18 and the remainder of the file herein. 19 I. PROCEDURAL FACTS 20 On October 6, 2008, the Plaintiff Terry L. Knight filed this case against Defendant Wal21 Mart Stores, Inc. (AWal-Mart@) in Mason County Superior Court. Dkt. 1. Plaintiff alleges in his 22 Complaint the following causes of action: Wrongful Termination, Employment Discrimination 23 on the basis of Age and Physical Infirmities, Retaliation for Potential Worker's Compensation 24 Liability, and Defamation, Libel and Slander. Dkt. 4. Page 1 - ORDER Dockets.Justia.com 1 Defendant removed the action to this Court on December 15, 2008 based on diversity of 2 citizenship. Dkt. 1 (citing 28 U.S.C. ' 1141). Defendant filed its Answer to Plaintiff=s Complaint 3 on December 22, 2008. Dkt. 5. 4 On January 14, 2009, Plaintiff filed a Demand for Jury Trial. Dkt. 7. Defendant asserted 5 in a Joint Status Report filed on March 17. 2009 that Plaintiff=s jury demand was untimely and a 6 bench trial should be set. Dkt. 8. On March 25, 2009, the Court issued a Minute Order, which set 7 this case for a Jury Trial to begin on January 11, 2010. Dkt. 9. The Defendant on October 21, 2009, filed a Motion to Dismiss Untimely Jury Demand 8 and Setting of Bench Trial (Dkt. 22) and a Motion for Summary Judgment (Dkt. 24). Plaintiff 9 did not file a timely response. On November 13, 2009, Defendant filed a Reply in Support of 10 Motion for Summary Judgment (Dkt. 28) and a Reply in Support of Motion to Dismiss Plaintiff=s 11 Untimely Jury Demand and for Setting of Bench Trial (Dkt.30) arguing Plaintiff=s failure to 12 respond should be taken as an admission that the motions have merit. Plaintiff filed, on November 13, 2009, a Motion for Extension of Time to File Responses 13 to Motion for Summary Judgment and Motion to Strike Untimely Jury Demand (Dkt. 32) stating 14 that he was unfamiliar with the Court Rules on responsive deadlines and requested that the Court 15 allow him to file responses that same day. On November 14, 2009, Plaintiff filed an Amended 16 Motion for Extension of Time to File Responses to Motion for Summary Judgment and Motion 17 to Strike Untimely Jury Demand (Dkt. 39) asking that the Court allow him to file his responses 18 on November 14, 2009. On that day, Plaintiff did in fact file a Response to the Motion for 19 Summary Judgment (Dkt. 33) and a Response to the Motion to Dismiss Untimely Jury Demand and for Setting Bench Trial (Dkt. 38). 20 21 On November 18, 2009, Defendant filed a Sur-Reply Pursuant to Local Rule 7(G) Requesting that the Court Strike Plaintiff=s Response to Defendant=s Motion for Summary 22 Judgment and Response to Defendant=s Motion to Strike Jury Demand (Dkt. 40) on the grounds 23 that Plaintiff failed to show good cause for missing the deadline for his response. On November 24 20, 2009, Defendant filed a Response to Plaintiff=s Amended Motion for Extension of Time to Page 2 - ORDER 1 2 File Responses to Motion for Summary Judgment and Motion to Strike Untimely Jury Demand (Dkt. 49) asserting that Plaintiff=s negligence is not excusable and requesting that the Court 3 award Defendant attorney fees and costs incurred as a result of Plaintiff=s untimeliness. 4 On November 25, 2009, Plaintiff filed a Reply in Support of Amended Motion for 5 Extension of Time to File Responses to Motion for Summary Judgment and Motion to Strike 6 Untimely Jury Demand (Dkt. 52). This Court on November 25, 2009, granted the Plaintiff=s 7 Amended Motion for Extension of Time (Dkt. 39) and ordered that the Defendant=s reply, if any, 8 addressing the merits o f Plaintiff=s responses must be filed by December 2, 2009 (Dkt. 54). On December 2, 2009, Defendant filed a Reply to the Plaintiff=s Response to Defendant=s Motion for 9 Summary Judgment (Dkt. 56) and a Reply to the Plaintiff=s Response to Defendant=s Motion to 10 Dismiss for Untimely Jury Demand and for Setting of Bench Trial (Dkt. 55). Defendant on 11 December 3, 2009, filed an Errata (Dkt. 58) amending its Reply. II. RELEVANT FACTS: 12 Plaintiff was hired in June 1996 by Defendant Wal-Mart to work as an overnight stocker 13 in Defendant=s Shelton store. Dkt 25-2 at 40. On October 4, 2007, Defendant terminated 14 Plaintiff=s employment for Gross Misconduct. Dkt. 25-2 at 1. Specifically, Plaintiff was 15 Aterminated for using profanity on the salesfloor and threatening other associates.@ Dkt. 25-2 at 1. 16 A. Plaintiff=s Pre-termination Treatment: 17 Plaintiff alleges that a couple months before his termination, around August or September 18 2007, an assistant manager, Kurt Fritz (Plaintiff does not recall Mr. Fritz=s last name and refers to 19 him as Kurt in his deposition; defendant=s Motion for Summary Judgment identifies Kurt as Mr. 20 Kurt Fritz (Dkt. 24 at 11)) witnessed Plaintiff drop a jar of pickles and Plaintiff told Mr. Fritz 21 that he had been Adropping things, because [his] arms were B [he] was having troubles with [his] 22 arms they were going to sleep on [him] and pain...sleeping all the time.@ Dkt. 35 at 5. Plaintiff also alleges that he told Mr. Fritz that he was unsure what was going on but was 23 going to research the cause of the pain. Dkt. 35 at 5. Plaintiff asserts that this pain began around 24 June 2007. Dkt. 35 at 5. Plaintiff contends that Mr. Fritz told him that he Ashould go have that Page 3 - ORDER 1 2 checked.@ Dkt. 35 at 5. Plaintiff states that he did not have the pain in his arms checked out because he Awas in the process of hoping it would go away@ and that he has Aa lot of aches and 3 pains like everybody else.@ Dkt .35 at 6. Plaintiff admits that he never told Kevin Johnston, the 4 store manager, Doris Sturdevant, an assistant manager, or Alice Knutson, a support manager, that 5 he was having trouble with his arm. Dkt. 25-2 at 58. Mr. Johnston states that he was never told 6 about Plaintiff=s wrist problem. Dkt. 25-2 at 63. Nicole Lindsay, an assistant manager, states that 7 she never knew Plaintiff's arm problems. Dkt. 25-3 at 54. Plaintiff contends that at the time of his termination he suffered from knee problems and 8 elbow pain. Dkt. 4 at 20. Plaintiff alleges that he was performing all of the essential functions of 9 his job, despite that his job involved hard physical labor. Dkt. 4 at 20. Plaintiff contends that he 10 likely had knee surgeries in 2000, 2002, 2004 and 2007 and a knee replacement in 2006. Dkt. 35 11 at 5. Plaintiff maintains that he had ankle surgery in 2004. Dkt. 35 at 5. Plaintiff had "filed a SIF 12 2 (Self-Insurer Accident Report) No. W78789 due to an aggravation of his condition as a result 13 of a fall he took on the job on or around September 14, 2002." Dkt. 4 at 22. Plaintiff states that there was no worker's compensation claim prosecuted for that injury. Dkt. 4 at 22. Plaintiff 14 15 asserts that at the time of his termination he had a left knee replacement, but his knee Aconstantly ached to the point that I had to take pain medication.@ Dkt. 35 at 2. Plaintiff also contends that he 16 had restricted knee flexion and his left leg was weaker and this made working on the ladders 17 more difficult, which is why he worked in groceries because the Plaintiff could reduce the time 18 he spent on a ladder. Dkt. 35 at 2. Ms. Knutson states that management Aalways kept [Plaintiff] 19 over on the grocery side so he didn=t have to go up and down ladders.@ Dkt. 36-3 at 9. Ms. Knutson also contends that there were times where Plaintiff would use foul language on the job 20 21 when he bumped his knee because Ahe had surgery on his knee or something... and, of course, you are going to cuss because it hurts.@ Dkt. 36-3 at 9. Mr. Johnston states that he was unaware 22 that Plaintiff took some AL&I@ time off for his knee or any kind of physical ailment. Dkt. 25-2 at 23 63, 64.It is undisputed that Plaintiff was 52 years of age at the time of his termination. Dkt. 4 at 24 20. Plaintiff states that some people made jokes about this age. Dkt. 25-2 at 53. Specifically, Page 4 - ORDER 1 2 Plaintiff contends that Aa couple different people in management [were] giving [him] a hard time because [he] was going up ladders with totes on [his] shoulders and saying [that he] was too old 3 to doing that and this and that.@ Dkt. 25-2 at 53. Plaintiff states he thought that they were Ajust 4 joking@ but thought, Asome of them might have been serious.@ Dkt. 25-2 at 53. Plaintiff admits 5 that the managers who allegedly made these comments were no longer employed by Defendant 6 and he could not recall specific names. Dkt. 25-2 at 53. Plaintiff also states that this happened 7 maybe two or four years prior to his termination. Dkt. 25-2 at 53-54. Plaintiff contends that Alice Knutson and Frankie (his last name and position at Wal- 8 Mart is unknown (it is unclear from Plaintiff's deposition who Frankie is and what his role was at 9 Wal-Mart) made some comments concerning his age; namely, Plaintiff states that the comments 10 directed at him asked if he aspired to be more than just a stocker and become management at 11 Wal-Mart. Dkt. 25-2 at 59. Plaintiff admits that he thinks Frankie was joking but Ait hit a nerve 12 with [him] a little bit.@ Dkt. 25-2 at 60. Mr. Johnston states that he was unaware of Plaintiff=s age 13 and that Athere were lots of people who worked at the store that appear to be older...than [Plaintiff].@ Dkt. 36-5 at 3. 14 Plaintiff maintains that while he worked at Wal-Mart there were other stockers that were 15 older than him. Dkt 25-2 at 55. Particularly, Plaintiff states that ARick in chemicals,@ who Awas 16 always limping,@ AAl in cereal,@ and Jim Miller. Dkt. 25-2 at 55-56. Plaintiff states that he knows 17 that Jim retired from Wal-Mart after Plaintiff=s termination and believes that Al and Rick are 18 currently employed by Wal-Mart. Dkt. 25-2 at 57. Mr. Johnston states that he was unaware of 19 Plaintiff=s age. Dkt. 25-2 at 64. B. Plaintiff=s Termination: 20 21 The events leading up to Plaintiff=s termination are convoluted in the pleadings, but Defendant asserts it terminated Plaintiff=s employment because Plaintiff got into an on-the-job 22 confrontation with another associate, Spencer Sleight. Dkt. 25-3 at 58-59. Viewing the facts in 23 the light most favorable to the nonmoving party (Plaintiff), there is some dispute as to the 24 incident that ultimately resulted in Plaintiff=s termination. Page 5 - ORDER 1 i. The Confrontation 2 On October 4, 2007, Plaintiff was working an overnight shift at Wal-Mart, stocking 3 aisles. Dkt. 36-4 at 3. Plaintiff states that he was told by Mr. Sleight, another stocker, to 4 download a pallet between Aisle 4 and Aisle 5. Dkt. 35 at 7. Plaintiff contends that he responded 5 to Mr. Sleight that Plaintiff knew what he was supposed to do and that he was going to help 6 another associate, Rick in chemicals, because that is what Plaintiff always did on that particular 7 night and that Plaintiff did not have an assigned aisle. Dkt. 35 at 7. Plaintiff contends that Mr. 8 Sleight then got angry and stormed off. Dkt. 35 at 7. Mr. Sleight contends that he overheard Plaintiff, from a couple aisles over, Abitching up a storm@ about the aisle assignments. Dkt. 25-3 9 at 58. 10 Plaintiff states that, shortly after Mr. Sleight left, Plaintiff was called back to Nicole 11 Lindsay=s office - she was a new assistant manager at this time. Dkt. 35 at 7. Plaintiff states that 12 he then told Ms. Lindsay that Mr. Sleight is a stocker, like Plaintiff, and is not supposed to tell 13 Plaintiff what his job assignment is unless Ms. Lindsay told Mr. Sleight to relay Plaintiff=s assignment to him. Dkt. 35 at 7. Plaintiff asserts that he told her that on that night he usually 14 helps out Rick in another department. Dkt. 35 at 7. Plaintiff states that then Ms. Lindsay 15 16 apologized for not letting him or the rest of the crew know that she had given Mr. Sleight permission to give assignments. Dkt. 35 at 7. Plaintiff states that, as Plaintiff left Ms. Lindsay=s office and was walking back to the 17 18 19 salesfloor, Chelsea Puetz, another associate/stocker, pointed her finger at Plaintiff in a mocking manner because he Agot called back to management.@ Dkt. 35 at 8. Plaintiff asserts that he walked up to Chelsea Puetz and asked that Aif she had any issues if she would come to me and 20 21 talk to me,@ because he had Aheard a rumor again that she had told somebody something nasty about me.@ Dkt. 35 at 8. Chelsea Puetz said she went to management a few times about Plaintiff=s 22 behavior because she was concerned that Plaintiff was possibly using drugs and smelled like 23 alcohol. Dkt. 25-3 at 16. Chelsea Puetz maintains that Plaintiff told her to keep her mouth shut 24 and mind her own business and that this statement made her feel Aintimidated@ and afraid Page 6 - ORDER 1 2 Plaintiff Awas going to beat [her] up for saying those things.@ Dkt. 25-3 at 15. Plaintiff asserts that he did not swear at Chelsea Puetz. Dkt. 9 at 15. Plaintiff states that then Chelsea Puetz 3 started crying. Dkt. 25-2 at 45. Chelsea Puetz states that then she, Plaintiff and Mr. Sleight went 4 on their scheduled breaks. Dkt. 25-3 at 15. 5 Chelsea Puetz asserts that during the break she was in the break room with her mother, 6 Kathleen Puetz, another Wal-Mart employee, and Plaintiff walked in and said Ayou should have 7 just kept your mouth shut.@ Dkt. 25-3 at 19. Chelsea Puetz contends that she was still crying and 8 started Acrying even harder@ because she had told Plaintiff that she did not want him talking to her. Dkt. 25-2 at 25. Plaintiff claims he does not recall any incident in the break room with 9 Chelsea Puetz or her mother, but recalls them Ajoking and laughing.@ Dkt. 25-2 at 46. Chelsea 10 Puetz states that after this incident she and her mother immediately went to management to 11 complain about Plaintiff=s behavior and that Chelsea Puetz filled out a statement. Dkt. 25-3 at 26. 12 Chelsea Puetz contends that after break Plaintiff and Spencer continued to argue. Dkt. 25- 13 3 at 16. Plaintiff states that Mr. Sleight Atook offense@ to his comments to Chelsea Puetz and Mr. Sleight came over to Plaintiff with his Afist clenched@ and Abumped@ Plaintiff in the chest with his 14 15 chest and in the face with his nose and told Plaintiff to Atake a swing at him.@ Dkt. 35 at 8. However, Mr. Sleight contends that he overheard Plaintiff Atalking trash@ a couple aisles over and 16 told Plaintiff that if he has Agot something to say, you want to say it to me?@ Dkt. 25-3 at 58. Mr. 17 Sleight states that then Plaintiff Acomes flying out@ of his aisle, gets Aright up in [his] face,@ and 18 they have a Abaseball scrum.@ Dkt. 25-3 at 58. Mr. Sleight alleges that they were Anose to nose@ 19 and Achest to chest.@ Dkt. 25-3 at 59. Mr. Sleight states that he told Plaintiff that if he had something to say to say it to his face. Dkt. 25-3 at 59. Mr. Sleight contends that both he and 20 21 22 Plaintiff used foul language. Dkt. 25-3 at 59. Mr. Sleight states that Athe only time [Plaintiff] touched me was to push him away from him.@ Dkt. 25-3 at 60. Mr. Sleight asserts that he never pushed Plaintiff. Dkt. 25-3 at 60. Chelsea Puetz states that Plaintiff and Mr. Sleight bumped chests and that Plaintiff told 23 24 Mr. Sleight Athat if [he] thought he was so tough, he would meet him out in the parking lot after Page 7 - ORDER 1 2 work and show him how tough he could be.@ Dkt. 25-3 at 16. Plaintiff alleges that he did not retaliate, that he did not swear at Mr. Sleight, and that he Asmiled at [Mr. Sleight] and walked 3 away and proceeded to work Aisle 4.@ Dkt. 35 at 8, 9. Plaintiff states that he did not report to 4 management concerning the incident that night. Dkt. 35 at 8. 5 ii. The Investigation into the Confrontation 6 Prior to the confrontation, Plaintiff=s work performance evaluations would be classified 7 as fairly neutral. Dkt. 25-2 at 2-9. Plaintiff=s 2007 evaluation does state that he Aneeds to keep a 8 positive attitude@ but also lists that Plaintiff Aexceeds expectations.@ Dkt. 25-2 at 2. Kevin Johnston, the store manager, contends that both Mr. Sleight and Alice Knutson, a manager, had 9 complained to him about Plaintiff=s temper on several occasions before Plaintiff=s confrontation 10 with Mr. Sleight. Dkt. 25-2 at 66. Mr. Johnston states that Chelsea Puetz and her mother, 11 Kathleen Puetz, had complained to him earlier about Plaintiff=s behavior. Dkt. 25-2 at 68. 12 Chelsea Puetz states that Plaintiff Astarted causing trouble for people towards the last couple of 13 months@ before his termination and that she thought that this was because he was coping with stress because of his divorce. Dkt. 25-3 at 13-14. 14 Mr. Johnston states that he heard about the confrontation because Mr. Sleight came and 15 told him about it the next day. Dkt. 25-2 at 72. Mr. Johnston said that he conducted the 16 investigation into the confrontation but also relied on input from the other managers. Dkt. 25-2 at 17 74. Mr. Johnston maintains that Mr. Sleight Atold [him] that [Plaintiff] became upset with him 18 and started shouting and using profanity and bumped him backwards with his chest.@ Dkt. 25-2 at 19 72. Mr. Johnston states that both Mr. Sleight and Jim Miller, a stocker who allegedly witnessed the incident, said that Plaintiff used Aprofanity and became aggressive towards Spencer and 20 21 bumped him with his chest, knocking him backwards.@ Dkt. 25-2 at 70. Mr. Johnston contends that Mr. Sleight told him that Plaintiff was also yelling. Dkt. 25-2 at 70. Mr. Johnston maintains 22 that he got written statements concerning the incident from Mr. Sleight and Mr. Miller. Dkt. 25-2 23 at 75. Mr. Johnston maintains that, after an exhaustive records search, he has not been able to 24 locate these statements. (Defendant states that Mr. Johnson testified that it was his routine Page 8 - ORDER 1 2 practice to retain associate statements or any other such documentation on investigations in his locked file cabinet. Dkt. 25-2 at 20. Defendant further states that in the spring of 2008 and prior 3 to commencement of this lawsuit, Wal-Mart gathered documents and files from store throughout 4 Washington state, including the Shelton store, and moved these files to a warehouse for 5 discovery in a Washington state class action litigation against Wal-Mart. Dkt. 25-2 at 21. 6 Defendant contends that it has diligently searched for these statements but has been unable to 7 locate them. Dkt. 25-2 at 21-22). Dkt. 25-2 at 75. Mr. Johnston states that he also spoke with Nicole Lindsay and Plaintiff about the 8 incident. Dkt. 25-2 at 74. Ms. Lindsay states that she was also informed about the altercation that 9 evening by an associate, whose name she cannot remember. Dkt. 36-4 at 3. Ms. Lindsay 10 contends that this unnamed associate told her that Plaintiff and Mr. Sleight were yelling at each 11 other and she characterized the altercation as Aequivalent.@ Dkt. 36-4 at 3. Ms. Lindsay asserts 12 that she Acalled [Plaintiff] and [Mr. Sleight] back, and then [she] had gotten names from them to 13 see who else had been involved or seen the altercation.@ Dkt. 36-4 at 4. Ms. Lindsay said that when she spoke to Plaintiff she thinks Ahe gave [her] Jim [Miller=s] name@ as a witness. Dkt. 36-4 14 at 4. Ms. Lindsay indicates that Mr. Sleight told her witnesses to the confrontation were Chelsea 15 Puetz and Jared Schwartz. Dkt. 36-4 at 4-5. Ms. Lindsay states that the witnesses gave written 16 statements, which she gave to Mr. Johnston. Dkt. 36-4 at 5. Ms. Lindsay contends that she was 17 unfamiliar with the termination process but Achecked all the stories that everybody had told [her] 18 and that everyone said the same thing...they heard [Plaintiff] say these words.@ Dkt. 36-4 at 6. 19 Ms. Lindsay states that only two people saw Plaintiff Achest bump@ Mr. Sleight. Dkt. 36-4 at 6. Ms. Lindsay asserts that she pass this information along to Mr. Johnston when he came in the 20 21 next morning and that she told Mr. Johnston that everyone agrees that Plaintiff Awas swearing on the sales floor@ and that one person, other than Mr. Sleight, saw Plaintiff threaten Mr. Sleight to 22 start a fight. Dkt. 36-4 at 6. Ms. Lindsay maintains that Mr. Johnston told her to Aterminate 23 [Plaintiff] and you write down, >Gross misconduct= Associate was swearing on the sales floor and 24 Page 9 - ORDER 1 2 threatening associates.@ Dkt. 36-4 at 6. Ms. Lindsay contends that Mr. Johnston did not review Plaintiff=s personnel file before the decision to terminate Plaintiff was made. Dkt. 36-4 at 7. 3 Mr. Johnston contends that he decided to terminate Plaintiff after speaking to Mr. Sleight 4 and Mr. Miller, reviewing Plaintiff=s personnel file, considering other employees= earlier 5 statements about Plaintiff=s unbecoming behavior, and taking into account that his job was to 6 ensure that Wal-Mart was not exposed to any Ahostility.@ Dkt. 25-2 at 78. Mr. Johnston asserts 7 that he made the decision to terminate Plaintiff because Plaintiff used profanity and the Aimplied 8 threat@ of Araising voices and shouting,@ and that this decision was based on the guidelines of Wal-Mart policy. Dkt. 25-2 at 70-71. Mr. Johnston contends that he did not believe Plaintiff's 9 version of the events because he found Mr. Sleight and Mr. Miller's version of the events more 10 credible. Dkt. 25-2 at 78. Specifically, Mr. Johnston states that this is because "Mr. Sleight and 11 Mr. Miller both furnished statements saying the same " and the statements came from two 12 individuals who do not normally associate with each other. Dkt. 25-2 at 78. iii. The Termination Meeting 13 On October 4, 2007, Defendant terminated Plaintiff=s employment for Gross Misconduct. 14 15 Dkt. 25-2 at 1. Specifically, Plaintiff was Aterminated for using profanity on the salesfloor and threatening other associates.@ Dkt. 25-2 at 1. Plaintiff admits that he understands that threatening 16 employees in the workplace could be grounds for immediate termination. Dkt. 25-2 at 50. 17 Plaintiff states that Alice Knutson, a support manager, and Doris Strudevant, an assistant 18 manager, were present at his termination meeting. Dkt. 35 at 9-10. Ms. Lindsay states that she sat 19 in on Plaintiff=s termination meeting. Dkt. 25-3 at 49; Dkt. 25-3 at 69-70. Plaintiff contends that at the termination meeting management stated that Plaintiff was being fired for Ausing profanity 20 and aggressive behavior.@ Dkt. 35 at 10. Ms. Strudevant states that when she told Plaintiff he was 21 being terminated he said AGod damnit, Doris, you know me,@ and denied getting into a 22 confrontation with Mr. Sleight. Dkt. 36-2 at 6. Plaintiff asserts that he tried to explain he did 23 nothing wrong and that Mr. Sleight was physical towards him, but that management said nothing 24 and asked Plaintiff to leave the store. Dkt. 35 at 10. Plaintiff admits he raised his voice and was Page 10 - ORDER 1 2 upset as he was escorted out of the store by either Ms. Knutson or Ms. Sturdevant. Dkt. 35 at 11. Ms. Strudevant contends that Plaintiff did nothing inappropriate in the termination meeting, but 3 was visibly upset. Dkt. 36-2 at 6. Ms. Lindsay states that Plaintiff was Abelligerent@ and swore at 4 her and Ms. Strudevant. Dkt. 25-3 at 49. Ms. Lindsay contends that Plaintiff Astarted saying that 5 it was discrimination@ because of his age and medical condition and that he was Agetting fired 6 because [he had] been there so long and they don=t want to pay [him] any more.@ Dkt. 25-3 at 49- 7 50. Ms. Strudevant states that she escorted Plaintiff out of the store and that he did not act 8 inappropriately as she escorted him out. Dkt. 36-2 at 7. iv. After Plaintiff=s Termination 9 Plaintiff contends that after his termination he tried to contact his store manager, Mr. 10 Johnston, by telephone and Mr. Johnson did not respond immediately. Dkt. 35 at 11. Plaintiff 11 states that a few days later he went into the store and met with Mr. Johnston in person. Dkt. 35 12 at 11. Plaintiff asserts that at this meeting he asked Mr. Johnston why he was being fired and Mr. 13 Johnson responded that Athere was nothing [Plaintiff] could do, [he] was being fired, they had witnesses.@ Dkt. 35 at 11. Plaintiff states that he was upset and crying at this meeting and likely 14 15 raised his voice a bit. Dkt. 35 at 13. Plaintiff denies telling Mr. Johnston that Ahe better watch his back.@ Dkt. 35 at 13. Plaintiff states that he told Mr. Johnston that he was going to call Mr. 16 Johnston=s boss and discuss this. Dkt. 35 at 13. Mr. Johnston states that, under the open door 17 policy, he had a telephone call with Plaintiff and Tom Etchells, the district manager, after 18 Plaintiff=s termination. Dkt. 25-2 at 79. Mr. Johnston contends that Plaintiff was upset and asked 19 him and Mr. Etchells what the termination was based on. Dkt. 25-2 at 79. Mr. Etchells states that during this meeting Plaintiff told him that he Abetter be careful here and make the right decision,@ 20 21 22 and that Mr. Etchells felt that this statement was made in a threatening tone. Dkt 25-3 at 6. Mr. Etchells contends that it was his belief that this statement only affirmed Mr. Johnston's decision to terminate Plaintiff. Dkt. 25-3 at 6. 23 Plaintiff states that at this post-termination meeting he asked Mr. Johnston if the cameras 24 in the store had captured the incident. Dkt. 35 at 13. Plaintiff states that Mr. Johnston responded Page 11 - ORDER 1 2 that there was no tape of the incident. Dkt. 35 at 13. Mr. Johnston states that after this conversation he looked at the camera shots. Dkt. 25-2 at 83. Mr. Johnston contends that he Awent 3 into the room that contains the video screens that have the camera shots and reviewed the camera 4 shots,@ but Athere was no camera shot of the aisle where the incident occurred.@ Dkt. 25-2 at 76- 5 77. 6 Plaintiff asserts that after he met with Mr. Johnston he called Mr. Etchells, the regional 7 manager, to discuss his termination. Plaintiff contends that Mr. Etchells told him that he Acan=t 8 be fired for using profanity, that [was] a verbal warning,@ and that this verbal warning was Athe smallest, verbal, and then written and then decision day.@ Dkt. 35 at 13. Plaintiff states that Mr. 9 Etchells told him that he would investigate this matter thoroughly and quickly and get back to 10 Plaintiff within a couple days. Dkt. 35 at 13. Mr. Etchells states that he did not tell Plaintiff that 11 he would call Mr. Johnston and look into the reason for Plaintiff=s termination. Dkt. 25-3 at 3. Mr. Etchells contends that he spoke with Mr. Johnston and that Plaintiff was terminated 12 13 for Abasically threatening another associate,@ and that he recalled Achest butting, coming up to it, another associate, and one provoked a fight.@ Dkt. 25-3 at 3. Mr. Etchells states that Mr. Johnston 14 also mentioned that Plaintiff swore. Dkt. 25-3 at 3-4. Mr. Etchells maintains that Mr. Johnston 15 told him that he relied on statements from other associates to make the decision to terminate 16 Plaintiff. Dkt. 25-3 at 4. Mr. Etchells states that as a standard disciplinary procedure for swearing 17 on the salesfloor Wal-Mart would usually Acoach for improvement@ and provide written 18 counseling or a write-up and Aif this ever happens again,@ the employee would be terminated. 19 Dkt. 25-3 at 8. Mr. Etchells asserts that for workplace violence an employee would be automatically terminated. Dkt. 25-3 at 8. Mr. Etchells contends that Mr. Johnston Awas 20 21 convinced that the physical contact had occurred based on the facts that he had@ in the statements. Dkt. 25-3 at 8. 22 C. Plaintiff=s Restriction from Wal-Mart Property: 23 24 Plaintiff admits after he was terminated that he had to go to Wal-Mart to pick up some paperwork and he approached Mr. Sleight=s car in the Wal-Mart parking lot. Dkt. 25-2 at 47. Mr. Page 12 - ORDER 1 2 Sleight states that this was approximately a week after Plaintiff=s termination. Dkt. 25-3 at 64-65. Plaintiff states that Mr. Sleight Ajumped out of his car like [Plaintiff] was going to hit him or 3 fight him,@ and Mr. Sleight Aput his hands up like he was going to fight [Plaintiff].@ Dkt. 25-2 at 4 48. Plaintiff contends that he told Mr. Sleight AI don=t even know why you did this, why you are 5 doing this.@ Dkt. 25-2 at 48. Mr. Sleight states that Plaintiff Apopped up in the parking lot one 6 morning and was standing right next to the driver=s side of my truck, sitting there basically 7 telling me how I lied, and how could I get him fired.@ Dkt. 25-3 at 64-65. Mr. Sleight contends 8 that Plaintiff was Awaiting@ by his truck for him. Dkt. 25-3 at 65. Mr. Sleight asserts that Plaintiff was Ayelling at the top of his lungs@ and swore at him. Dkt. 25-2 at 65-66. Plaintiff maintains that 9 he then turned around and walked away from Mr. Sleight. Dkt. 25-2 at 48. Plaintiff states that 10 management then came out to the parking lot and told him to leave, which he contends that he 11 did. Dkt. 25-2 at 48. Mr. Sleight states that management Averbally@ pulled Plaintiff away from his 12 vehicle. Dkt. 25-2 at 67. Mr. Sleight contends that after this incident he went to the courthouse in 13 Shelton to get the paperwork to file a restraining order against Plaintiff, but never actually filed one against him. Dkt. 25-2 at 64 14 While Plaintiff was employed at Wal-Mart, his wife was also a Wal-Mart employee. Dkt. 15 25-2 at 31. The same year as Plaintiff=s termination from Wal-Mart, he was also going through a 16 divorce from his now ex-wife. Dkt. 25-2 at 31. She took a restraining order out against Plaintiff, 17 which required him to work in a separate area of the store away from her. Dkt. 25-2 at 32-33. 18 Plaintiff states that, despite the restraining order, after his termination he may have seen his now 19 ex-wife at the store and tried to speak with her, but she did not want to talk and Plaintiff continued on his way. Dkt. 25-2 at 48-49. Plaintiff states that he believes that Defendant may 20 21 have restricted him from Wal-Mart property because his Awife worked there and she had a restraining order against [him] [and] that made it easier for them.@ Dkt. 25-2 at 52. 22 23 Defendant, on January 17, 2008, issued a Notification of Restriction from Property to Plaintiff informing him that he had Abeen banned from all Wal-Mart property, and that to enter 24 Page 13 - ORDER 1 2 onto any such property places [him] at risk for arrest and prosecution for Criminal Trespass.@ Dkt. 25-2 at 19. The Notification states that: 3 4 APursuant to law, Wal-Mart Stores, Inc., chooses to exercise its right to restrict entrance to individuals who have conducted themselves in a manner which is not acceptable to the community, including, but not limited to, shoplifting or destruction of property. It is deemed that the undersigned apprehended subject poses a threat to the future security of Wal-Mart facilities and properties, and therefore, is no longer welcome on Wal-Mart property, within its stores, or on any property under its immediate control.@ 5 6 7 8 9 Dkt. 25-2 at 19. The notice further states that Ait is not necessary that the undersigned apprehended subject be caught in an illegal act, including, but not limited to, shoplifting or destroying property; the mere presence of such individual of the property is sufficient.@ Dkt. 25-2 10 at 19. 11 Mr. Johnston states that he was not specifically involved in the decision to restrict 12 Plaintiff from Wal-Mart property. Dkt. 25-2 at 81. Mr. Johnston contends that his co-manager 13 Minerva (whose last name is unknown) and assistant manager, Mark Chenowitz, made the 14 decision to restrict Plaintiff from Wal-Mart property. Dkt. 25-2 at 81 Mr. Chenowith states that he restricted Plaintiff from the property because he was concerned that Plaintiff kept returning to 15 16 the store Acausing problems,@ specifically, Plaintiff was using profanity, bothering other associates, and management was concerned about the restraining order against Plaintiff. Dkt. 25- 17 2 at 40. Ms. Knutson states that Plaintiff came onto to Wal-Mart property and called her an AF- 18 ing bitch.@ Dkt. 25-3 at 44. D. Wal-Mart=s Coaching Process: 19 Defendant utilizes a coaching process, which is Aan informal, ongoing process of helping 20 Associates achieve results by building on Associates= strengths, developing their skills, providing 21 encouragements and increasing their confidences.@ Dkt. 25-2 at 10. Defendant states that it uses 22 this coaching process Awhen an Associate=s behavior (job performance or misconduct) falls to 23 meet the Company=s expectations@ and that it Ais designed to be progressive.@ Dkt. 25-2 at 10. 24 Defendant states that managers should Aalways start at the appropriate Coaching Level Page 14 - ORDER 1 2 depending on the classification of behavior to be addressed@ and that Amore serious levels of coaching are used at appropriate intervals.@ Dkt. 25-2 at 10. 3 4 Defendant contends that Athere will be some situations where use of Coaching process is not warranted and instead, the Associate=s employment is automatically terminated@ like Gross 5 Misconduct. Dkt. 25-2 at 10. The Wal-Mart Associate Handbook also states that Athere 6 are...certain actions of misconduct that may result in immediate termination@ including, but not 7 limited to Afighting/assault or threats,@ Aserious harassment/inappropriate conduct,@ and Arude or 8 abusive conduct toward a customer or Associate.@ Dkt. 25-2 at 24. Defendant states that the Coaching for Improvement process Awill not be used to address gross misconduct.@ Dkt. 25-2 at 9 12. Defendant asserts that AAssociates who are deemed to have engaged in Gross Misconduct are 10 subject to immediate termination,@ and that Gross Misconduct Awill not be tolerated.@ Dkt. 25-2 11 at 12. Defendant maintains that Gross Misconduct includes: Aserious harassment/inappropriate 12 conduct,@ Afighting/assault,@ and Arude/abusive conduct toward a Customer/Member or another 13 Associate.@ Dkt. 25-2 at 13. Defendant asserts that Wal-Mart maintains a strict Workplace Violence Policy, which 14 15 provides that Aany Associate who violates this policy will be disciplined up to and including termination from the Company.@ Dkt. 25-2 at 15. Defendant states that behavior like Apushing,@ 16 Aveiled threats of harm,@ Aintimidation,@ Afighting,@ and Achallenging another person to fight@ will 17 not be tolerated. Dkt. 25-2 at 15. Plaintiff admits that he was trained in Wal-Mart's workplace 18 violence policy and understood that threatening employees was grounds for immediate 19 termination. Dkt. 25-2 at 50-51. In this Workplace Violence Policy, Defendant provides a procedure for managers to investigate complaints of workplace violence, which includes: getting 20 21 22 the facts from the claimant, establishing the details of the event, talk to third parties such as witnesses to the event, talk to the alleged offender, evaluate the situation and obtain written statements. Dkt. 25-2 at 17. 23 24 Page 15 - ORDER 1 On April 25, 2001, Plaintiff signed an Acknowledgment, which states that: 2 3 4 5 AThis handbook is intended solely as a general information guide to let Associates know about the current policies and programs Wal-Mart has in place. The policies and benefits presented in this handbook are for your information and do not constitute terms or conditions of employment. This handbook supersedes all prior handbooks. This handbook is not a contract.@ 6 Dkt. 25-2 at 25. The Acknowledgment also states that AI understand that the information 7 contained in this handbook are guidelines only, and are in no way to be interpreted as a contract.@ 8 Dkt. 25-2 at 25 III. ANALYSIS 9 Under the Erie doctrine, this Court, when exercising diversity jurisdiction in an action 10 11 based on state law, applies state substantive law and federal procedural law. Walker v. Armco Steel Corp., 446 U.S. 740, 748 (1980). 12 13 14 Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56 (c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient 15 showing on an essential element of a claim in the case on which the nonmoving party has the 16 burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue 17 of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find 18 for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 19 (1986) (non-moving party must present specific, significant probative evidence, not simply 20 Asome metaphysical doubt.@). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, 21 22 23 requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987). 24 Page 16 - ORDER 1 The determination of the existence of a material fact is often a close question. The court 2 must consider the substantive evidentiary burden that the nonmoving party must meet at trial B 3 e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. 4 Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor 5 of the nonmoving party only when the facts specifically attested by that party contradict facts 6 specifically attested by the moving party. The nonmoving party may not merely state that it will 7 discredit the moving party=s evidence at trial, in the hopes that evidence can be developed at trial 8 to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, non specific statements in affidavits are not sufficient, and Amissing facts@ will not 9 be Apresumed.@ Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990). 10 A. Plaintiff's Claims of Discrimination and Retaliation 11 12 13 The Washington Law Against Discrimination constitutes an exception to the general rule that an employer may terminate an employee for good cause, no cause, or even morally wrong cause; the statute prohibits discrimination in hiring or discharge on the basis of race, gender, disability, or other enumerated characteristics. McClarty v. Totem Elec., 157 Wn.2d 214, 221 14 (2006) subsequently vacated and superseded by statute, RCW 49.60.040(25)(a) (2006), on other 15 grounds. Washington courts have adopted the burden-shifting framework announced in 16 McDonnell Douglas by the United States Supreme Court for claims of age and disability 17 discrimination and retaliation for filing a worker=s compensation claim. Hill v. BCTI Income 18 Fund-I, 144 Wn.2d 172 (2001) overruled on other grounds by McClarty v. Totem Elec., 157 19 Wn.2d 214 (2006) subsequently vacated and superseded by statute on other grounds; see also Renz v. Spokane Eye Clinic, P.S., 114 Wn. App. 611, 618-19 (2002). 20 21 Under this burden-shifting framework, the plaintiff must first establish a prima facie case of unlawful discrimination or retaliation. Hill, 144 Wn.2d at 181 citing McDonnell Douglas 22 Corp. v. Green, 411 U.S. 792, 802 (1973). Once the plaintiff establishes a prima facie case, the 23 burden shifts back to the defendant to provide a legitimate nondiscriminatory reason for the 24 adverse employment action. Hill, 144 Wn.2d at 181. To overcome the defendant=s proffered Page 17 - ORDER 1 2 reason, the plaintiff must produce evidence sufficient to indicate that it was merely pretext for discrimination. Hill, 144 Wn.2d at 182. If the plaintiff cannot make this showing, the defendant 3 becomes entitled to judgment as a matter of law. Hill, 144 Wn.2d at 182. 4 i. Plaintiff's Claim of Disability Discrimination 5 The plaintiff in order to make out a prima facie case of disability discrimination must show that 6 he (1) was disabled; (2) suffered an adverse employment action; (3) performed satisfactorily; and 7 (4) was discharged under circumstances that raise a reasonable inference of unlawful 8 discrimination. Callahan v. Walla Walla Housing Authority, 126 Wn. App. 812, 819 (2005) citing Roeber v. Dowty Aerospace Yakima, 116 Wn. App. 127 (2003); Chen v. State, 86 Wn. 9 App. 183, 189 (1997). 10 Under WLAD, disability is statutorily defined as Athe presence of a sensory, mental, or 11 physical impairment that: (i) is medically cognizable or diagnosable; or (ii) exists as a record or 12 history; or (iii) is perceived to exist whether or not it exists in fact.@ RCW 49.60.040(7)(a). The 13 definition states that A[a] disability exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to work generally or 14 work at a particular job or whether or not it limits any other activity within the scope of this 15 chapter.@ RCW 49.60.040(7)(b). Washington's case law is scarce on what is defined as a 16 disability, because, in 2007, the Washington State Legislature in adopted RCW 49.60.040(7)(a), 17 which overruled the Washington State Surpreme Court's decision in McClarty that defined a 18 disability as the same definition under the Americans with Disabilities Act of 1990. See 19 Delaplaine v. United Airlines, Inc., 518 F.Supp.2d 1275, 1276-1279 (W.D.Wash. 2007) (discusses the statute's effect on McClarty). But, WLAD still prohibits discrimination based on a 20 real or perceived disability. Callahan, 126 Wn. App. at 820. 21 Here, it is unclear whether Plaintiff's alleged injuries would be characterized as a 22 disability under the statute, because (1) Plaintiff offered very little evidence concerning these 23 alleged injuries and (2) Washington case law is scare on this issue. However, the Court views the 24 facts in the light most favorable to the nonmoving party, and the Court will assume that Page 18 - ORDER 1 2 Plaintiff's undiagnosed arm pain and knee injuries were disabilities under RCW 49.60.040(7)(a). Even assuming that Plaintiff had a disability, Plaintiff is unable to make out a prima facie 3 case of disability discrimination, because he does not offer sufficient evidence to raise a question 4 of fact as to whether he was terminated under circumstances that raise a reasonable inference of 5 unlawful discrimination. First, Plaintiff cannot show that the members of management that 6 decided to terminate him knew about his arm pain; specifically, Plaintiff told Mr. Fritz about the 7 arm pain around August 2007. Dkt. 35 at 5. Plaintiff has produced no evidence that Mr. Fritz was 8 involved in the decision to terminate Plaintiff. Dkt. 25-2 at 78; Dkt. 36-4 at 6. The managers that terminated Plaintiff, Mr. Johnston and/or Ms. Lindsay, did not know about Plaintiff's 9 10 undiagnosed arm pain before they made the decision to terminate him. Dkt. 25-2 at 63; Dkt. 25-3 at 54. 11 12 13 Second, Plaintiff cannot show that Mr. Johnston knew about Plaintiff's knee injuries. Dkt. 25-2 at 63-64 (Mr. Johnston states that he was unaware Plaintiff suffered from a knee injury or other physical ailment). On the other hand, Ms. Knutson (an assistant manager who was present at Plaintiff's termination meeting but appears not to have been involved in the decision to 14 terminate him) knew of his knee pain but it appears that she and other managers tried to lessen 15 Plaintiff's on-the-job exposure to more knee pain. Dkt. 36-3 at 9 (Ms. Knutson states that 16 management "always kept [Plaintiff] over on the grocery side so he didn't have to go up and 17 down ladders.") This statement does not support Plaintiff's contention that he was fired for his 18 disability. It suggests that Defendant had a willingness to accommodate his knee injuries. Even 19 viewing the facts in the light most favorable to the nonmoving party, Plaintiff does not make a sufficient showing that it is reasonable to infer that he was terminated because of his alleged 20 disabilities. 21 Even if Plaintiff can establish a prima facie case, Defendant has offered a legitimate 22 nondiscriminatory reason for Plaintiff's termination; namely, that Plaintiff was terminated 23 because he was involved in an on-the-job confrontation with another associate on the sales floor. 24 Dkt. 25-2 at 70-71. Although Plaintiff contends that the proffered reason must be pretextual Page 19 - ORDER 1 2 because of the all disputed facts surrounding the confrontation, the Court should grant the Defendant's motion for summary judgment on this issue, because Plaintiff produced no direct or 3 circumstantial evidence of discriminatory intent and a flawed investigation alone does not create 4 an issue of fact. See Hill, 144 Wn.2d at 185-186 (to survive summary judgment a Plaintiff must 5 show that a reasonable judge or jury could find that his disability was a substantial motivating 6 factor in his termination.); see also Hines v. Todd Pacific Shipyards Corp., 127 Wn. App. 356, 7 372 (2005) (stating that Aspeculation and belief are insufficient to create a fact issue as to pretext. 8 Nor can pretext be established by mere conclusory statements of a plaintiff who feels that he has been discriminated against.") quoting McKey v. Occidental Chem. Corp., 956 F.Supp. 1313, 9 1319 (S.D.Tex.1997). Plaintiff did not show that Mr. Johnston, the store manager who ultimately 10 terminated his employment, knew about Plaintiff's knee injuries or arm pain. Dkt. 25-2 at 63-64. 11 Furthermore, Plaintiff contends he reported his arm pain to Mr. Fitz, but none of the managers 12 that made the decision to terminate Plaintiff knew about the alleged injury. Dkt. 25-2 at 63; 25-3 13 at 54. Although Defendant's investigation can arguably be described as flawed, the Plaintiff 14 produced no evidence that this flawed investigation was pretextual. Plaintiff attempts to rely on 15 the fact that the investigation was so completely flawed that this creates a reasonable inference 16 that it must have been pretextual. However, a flawed investigation alone does not create 17 reasonable inference that a judge or jury could find that his disability was a substantial 18 motivating factor for Plaintiff's termination. The Plaintiff must produce sufficient evidence to 19 indicate that the confrontation and subsequent investigation was merely pretext for discrimination; Plaintiff has not met this burden. See Hill, 144 Wn.2d at 188-189 (Athere will be 20 21 instances where although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the 22 action was discriminatory.@) citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 23 120 (2000); see also Domingo v. Boeing Employees' Credit Union, 124 Wn.App. 71, 87 (violent 24 or harassing behavior is a legitimate reason for termination.); see also Roeber v. Dowty Page 20 - ORDER 1 2 Aerospace Yakima, 116 Wn. App. 127, 137-138 (plaintiff failed to produce evidence that defendant's legitimate nondiscriminatory reason, namely that employee was violent, was 3 pretextual, and the court stated that it is not unlawful for an employer to discharge an employee 4 because the employee is perceived to have misbehaved.) 5 The court, in Domingo, held that the plaintiff did not produce sufficient evidence that her 6 employee's investigation into her violent misconduct was pretextual, because the plaintiff only 7 "complain[ed] that management did not listen to her side of the story." 124 Wn. App. at 89. The 8 court stated that the plaintiff in Domingo did not "dispute that coworkers complained about her conduct, that [the employer] investigated the complaints, or that she received a written warning 9 about her violent behavior," and the plaintiff presented no evidence that her employer did not, in 10 good faith, believe that she had engaged in violent conduct. Id. Plaintiff's claim of pretext is 11 analogous to Domingo because he can only point to his disagreement with the outcome of his 12 employer's investigation. Plaintiff does not dispute that he got into an altercation with Mr. 13 Sleight, but rather he disputes whether he got physical or whether he swore; this is not sufficient to meet Plaintiff's burden to overcome pretext. The Court should grant the Defendant's motion 14 for summary judgment on this issue, because Plaintiff failed to produce sufficient evidence that 15 Defendant's motivation to terminate him was pretextual. 16 ii. Plaintiff's Claim of Age Discrimination: 17 Under Washington law, it is an unfair practice to discriminate in employment against an 18 individual who is 40 years of age or older. RCW 49.44.090(1). Washington law looks to federal 19 cases construing the Age Discrimination in Employment Act for guidance. Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 361 (1988). In order for the plaintiff to establish 20 21 a prima facie case of age discrimination, the plaintiff must show that he (1) was within the statutorily protected age group; (2) suffered an adverse employment action; (3) performed 22 satisfactorily; and (4) was replaced by a younger person. Domingo v. Boeing Employees' Credit 23 Union, 124 Wn. App. 71, 86-87 (2004). In this case, Plaintiff fails to make out a prima facie case 24 of age discrimination because he does not provide any evidence that Plaintiff was replaced by a Page 21 - ORDER 1 2 younger worker. See Dkt. 33 Plaintiff's Response to Defendant's Motion for Summary Judgment. Plaintiff failed to provide any specifics on who was his replacement. Furthermore, Plaintiff 3 admits that there were other stockers at Wal-Mart that were older than him and they did not get 4 terminated. Dkt. 25-2 at 55-57. 5 Even if Plaintiff can establish a prima facie case of age discrimination, Plaintiff has not 6 shown, much like disability discrimination, that Defendant's proffered legitimate 7 nondiscriminatory reason was pretextual. Plaintiff points to comments that were made 8 concerning his age and the fact that he was going up and down ladders with totes on his shoulders. Dkt. 25-2 at 53. However, Plaintiff does not recall the names of these managers and 9 admits they are no longer employees of Wal-Mart. Dkt. 25-2 at 53. Also, Plaintiff believes that 10 these comments may have been jokes and were made two to four years prior to his termination. 11 Dkt. 25-2 at 53-54. These vague statements do not create a sufficient inference that a reasonable 12 trier of fact could find in Plaintiff's favor. Plaintiff also points to some comments made by Ms. Knutson and Frankie (his last name 13 is unknown) concerning his age. Dkt. 25-2 at 59. Plaintiff states that they asked him if he aspired 14 to be more than just a stocker and become a manager. Dkt. 25-2 at 59. Plaintiff contends that he 15 thought the comments were made in jest, but some of them "hit a nerve." Dkt. 25-2 at 60. 16 Although Ms. Knutson appears to be involved in the decision to terminate Plaintiff, these 17 statements are positive and do not provide evidence of a discriminatory intent. Finally, similar to 18 this Court's discussion of Plaintiff's claim of disability discrimination, Plaintiff engaged in an on- 19 the-job confrontation with another Associate. His disagreement with management's findings does not create a genuine issue of fact. For these reasons, the Court should grant Defendant's motion 20 for summary judgment on the issue of age discrimination. 21 iii. Plaintiff's Claim of Retaliation for Communicating an Intent to File a Worker's 22 Compensation Claim: Under RCW 51.48.025(1), ANo employer may discharge or in any manner discriminate 23 24 against any employee because such employee has filed or communicated to the employer an Page 22 - ORDER 1 2 intent to file a claim for compensation.@ Under Washington law, a plaintiff, who alleges that his or her employer retaliated against him or her for filing or communicating an intent to file a 3 worker=s compensation claim, could (1) bring an action under RCW 51.48.025(2) with the 4 Director of Labor and Industries within 90 days of the alleged adverse employment event, or (2) 5 file a common law claim for wrongful discharge. Wilmot v. Kaiser Aluminum & Chem. Corp., 6 118 Wn.2d 46, 51 (1991). In this case, it is not immediately apparent to the Court, which 7 optional claims for retaliation the Plaintiff elects, but the elements of either optional claim appear 8 to be the same. In order to establish a prima facie case for retaliation, the plaintiff must show that (1) he 9 filed or communicated to his employer an intent to file a worker=s compensation claim; (2) his 10 employer terminated his employment; and (3) there is a causal link between his worker=s 11 compensation claim and his employment termination. Wilmot, 118 Wn.2d at 68-69. First, it appears that Plaintiff did not communicate his intent to file a workers' 12 13 compensation claim and, therefore, does not meet the first element of a prima facie case. Specifically, Plaintiff did not state he was going to file a worker's compensation claim when he 14 told Mr. Fritz about his arm pain. Dkt. 35 at 5. It would be difficult to infer from the alleged 15 conversation that Plaintiff's vague statements were sufficient to communicate an intent to file a 16 worker's compensation claim, because Plaintiff merely told Mr. Fritz that he was having arm 17 problems and Mr. Fritz told him to get it checked out. Id. From the plain language of the statute, 18 it appears that Plaintiff has not met his burden. Second, Plaintiff does not produce sufficient evidence to show a causal link between his 19 intent to file a worker's compensation claim and his employment termination. To establish a 20 21 causal connection, the plaintiff must show that the retaliation was a Asubstantial factor@ behind the decision to terminate his employment. Francom v. Costco Wholesale Corp., 98 Wn. App. 22 845, 862 (2000). Plaintiff admits that he never told any of the managers involved in his 23 termination, namely Mr. Johnston, Ms. Sturdevant or Ms. Knutson, that he was suffering from 24 arm or wrist problems. Dkt. 25-2 at 58. Mr. Johnston and Ms. Lindsay both state that they were Page 23 - ORDER 1 2 unaware of Plaintiff's arm problems. Dkt. 25-2 at 63; Dkt. 25-3 at 54. If the managers that made the decision to terminate Plaintiff were unaware of his arm pain, it is difficult to establish a 3 causal connection between the statements about his arm pain and his subsequent termination. 4 Plaintiff also suffered from knee problems and had "filed a SIF 2 (Self-Insurer Accident Report) 5 No. W78789 due to an aggravation of his condition as a result of a fall he took on the job on or 6 around September 14, 2002." Dkt. 4 at 22. Plaintiff states that there was no worker's 7 compensation claim prosecuted for that injury. Dkt. 4 at 22. Plaintiff also fails to make out a 8 prima facie case because this event, in 2002, is too remote in time from his termination, in 2007, to create an inference of a causal connection. In Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 9 481, 489 (2004), the court reasoned that the plaintiff failed to meet her burden of producing 10 evidence that she was discharged under circumstances that raise a reasonable inference of 11 unlawful discrimination. In that case, the plaintiff argued that close timing between her return to 12 work, after an on-the-job injury, and her termination for not producing a Social Security Number 13 is sufficient to establish this element. Anica, 120 Wn. App. at 489. However, the court disagreed stating that Acoincidence is not proof of causation.@ Id. The court further reasoned that the 14 defendant did not fire the plaintiff after her two earlier on-the-job injuries, all the while 15 requesting proof of a Social Security Number, supported the employer's contention that it 16 tolerated and accommodated the plaintiff's worker's compensation claims. Id. Here, Plaintiff was 17 not terminated until 2007 for an on-the-job confrontation; this is too remote in time to create a 18 causal connection for his 2002 knee injury. Even if Plaintiff makes out a prima facie case of retaliation for filing or communicating 19 an intent to file a worker's compensation claim, Plaintiff did not produce evidence sufficient to 20 21 overcome Defendant's proffered legitimate nondiscriminatory reason. Much like this Court's earlier discussion of pretext in relation to Plaintiff's claim of disability discrimination, Mr. 22 Johnston, who decided to terminate Plaintiff, did not know about his knee injuries or his arm 23 pain. Furthermore, Plaintiff's disagreement with the findings of the investigation is not sufficient 24 Page 24 - ORDER 1 2 to show pretext. For these reasons, the Court should grant Defendant's Motion for Summary Judgment on the claim of retaliation for filing a worker's compensation claim. 3 B. Plaintiff's Wrongful Termination/Breach of Contract Claim 4 At common law an at will-employee could be discharged for any reason. Gardner v. 5 Loomis Armored, Inc., 128 Wn.2d 931, 935 (1996). However, when an employer makes a 6 promise, in writing, that guarantees specific treatment in specific situations and the employee is 7 induced to remain on the job and not actively seek employment because of these promises, they 8 can become an enforceable part of the employment relationship, even where the relationship is at will. Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 230 (1984). In order to sustain a claim 9 for breach of promise of specific treatment, the plaintiff must prove these elements of the cause 10 of action: (1) that a statement (or statements) in an employee manual or handbook or similar 11 document amounts to a promise of specific treatment in specific situations, (2) that the employee 12 justifiably relied on the promise, and (3) that the promise was breached. Korslund v. Dyncorp 13 Tri-Cities Services, Inc., 156 Wn.2d 168, 184-185 (2005) citing Bulman v. Safeway, Inc., 144 Wash.2d 335, 340-41 (2001); Thompson, 102 Wn.2d at 233. Typically, each of these elements is 14 presented as an issue of fact, but where reasonable minds could not differ in resolving them, 15 16 these elements could be decided as a matter of law. Korslund, 156 Wn.2d at 185. The promise of a specific treatment claim rests on a theory of justified reliance. Id. The Washington Supreme Court, in Thompson, stated that there are situations where the 17 18 19 employer is not bound by statements in employment manuals, for instance if the employer Aspecifically state[s] in a conspicuous manner that nothing contained therein is intended to be part of the employment relationship and are simply statements of company policy,@ or when 20 21 Apolicy statements as written may not amount to promises of specific treatment and merely be general statements of company policy and, thus, not binding.@ 102 Wn.2d at 230-231. However, 22 in Swanson v. Liquid Air Corp., 118 Wn.2d 512, 532 (1992), the court rejected the premise that 23 Aa disclaimer can, as a matter of law, effectively serve as an eternal escape hatch for an employer 24 Page 25 - ORDER 1 2 who may then make whatever unenforceable promises of working conditions it is to its benefit to make,@ and A[a]n employer's inconsistent representations can negate the effect of a disclaimer.@ 3 Plaintiff argues that he justifiably relied upon the Aprogressive discipline@ scheme in that 4 he Aassumed he would get a fair hearing under the progressive discipline at Wal-Mart@ so that he 5 could try to explain his side of the story before his termination. Dkt. 33 at 12. Plaintiff states that 6 Ait was the offer of fairness at Wal-Mart, which including its discipline policies, that kept [him] 7 from looking for employment elsewhere.@ Dkt. 35 at 2. The Workplace Violence Policy did 8 provide management with some policies as to how to investigate an allegation of workplace violence, and it states that management must Arequest the alleged offender's view of what is 9 alleged to have occurred @ and to Abe certain to inform the alleged offender that our policy 10 requires that an investigation be made.@ Dkt. 25-2 at 17. It is unclear whether Plaintiff had 11 access to this Workplace Violence Policy and, therefore, whether he justifiably relied upon it. 12 However, because the facts are viewed in the light most favorable to the nonmoving party, the 13 Court will assume that Plaintiff had access to this policy. Assuming the facts in the light most favorable to the plaintiff, Defendant always retained the right to side step the coaching process 14 and automatically terminate any employee for Gross Misconduct or a violation of the Workplace 15 Violence Policy. Dkt. 25-2 at 10; Dkt. 25-2 at 15. The language is unambiguous that the 16 coaching process was not always warranted and termination may be appropriate. Dkt. 25-2 at 10 17 (Athere will be some situations where use of the Coaching process is not warranted and instead, 18 the Associate's employment is automatically terminated@ like Gross Misconduct); Dkt. 25-2 at 19 (AAny Associate who violates this [Workplace Violence] policy will be disciplined up to and including termination from the Company@). Defendant knew that the policies were not a contract, 20 21 only guidelines because he signed an "Acknowledgement" of such. Dkt. 25-2 at 25. Defendant also knew that if he threatened another associate he could be terminated. Dkt. 25-2 at 50. 22 Reasonable minds could not differ on this issue, and, therefore, Plaintiff could not have 23 justifiably relied upon these guidelines. 24 Page 26 - ORDER 1 While the actual facts of the investigation may be disputed, there is no doubt that an 2 investigation occurred and no doubt that Plaintiff's side of the story was given to either Ms. 3 Lindsay or Mr. Johnston. Dkt. 36-4 at 6; Dkt. 36-5 at 6. In fact, both Ms. Lindsay and Mr. 4 Johnston stated that they spoke with Plaintiff and obtained his side of the story. Id. Plaintiff did 5 get an opportunity to tell his side of the story and to try to convince management that he was not 6 violent, did not swear, and did not threaten another associate. Dkt. 25-2 at 50. Although Plaintiff 7 does not agree with the final outcome of the investigation, Plaintiff does not assert that no 8 altercation took place, but rather Plaintiff disputes whether he used profanity, whether he threatened another associate, and whether there was physical violence. But Defendant conducted 9 an investigation, which was all, even if flawed, that was guaranteed to Plaintiff under Wal-Mart 10 policies. Mr. Johnston was convinced that physical contact had occurred based on the facts that 11 he had and made the decision to terminate Plaintiff because of Gross Misconduct. Dkt. 25-2 at 12 14. It appears that Defendant made this decision because it needed to ensure the safety of its 13 customers and other associates and Defendant had the right to decide that it did not have to put up with violence in the workplace. 14 Plaintiff states that Mr. Etchells told him that he could not be fired for using profanity on 15 the sales floor, and the smallest verbal warning would be given if that was the case. Dkt. 35 at 16 14. Mr. Etchells contends that he did not make this statement. Dkt. 25-3 at 4. Assuming that Mr. 17 Etchells did make this statement, Plaintiff could not justifiably rely on this statement because it 18 was made after Plaintiff was terminated. There is also a dispute of fact whether Mr. Johnston, 19 the store manager, reviewed Plaintiff's personnel file before he was terminated, but nowhere in the Workplace Violence Policy does it state that management must review a personnel file before 20 21 termination. Dkt. 36-4 at 7; Dkt. 25-2 at 15-18. Finally, reasonable minds could not differ on whether these policies were only guidelines, which Plaintiff acknowledged, and that Plaintiff 22 could not justifiably rely upon them. For these reasons, Defendants motion for summary 23 judgment on the issue of breach of contract should be granted. 24 Page 27 - ORDER 1 C. Plaintiff's Claim of Defamation 2 In order for a plaintiff to survive a defendant=s motion for summary judgment, the 3 plaintiff must show that there are disputed material facts concerning the elements of defamation, 4 specifically: (1) a false and defamatory communication, (2) a lack of privilege, (3) fault, and (4) 5 damages. Woody v. Stapp, 146 Wn. App. 16, 21 (Div. 3 2008) citing Mohr v. Grant, 153 Wn.2d 6 812, 822 (2005). A plaintiff can defeat a summary judgment motion by presenting Aspecific, 7 material facts@ sufficient to support the existence of each element of defamation. Mohr v. Grant, 8 153 Wn.2d 812, 822 (2005). The burden of proving falsity is on the party claiming defamation. Schmalenberg v. Tacoma News, Inc., 87 Wn. App. 579, 590 (1997). 9 In this case, Plaintiff argues that Defendant is liable for defamation because it issued a 10 ANotice of Restriction from Property@ and opposed Plaintiff=s application for unemployment 11 benefits. Dkt. 4 at 23. However, Plaintiff provides no facts or argument in opposition to 12 Defendant=s motion for summary judgment on the issue of defamation. See Dkt. 33. In this case, 13 Defendant argues that Plaintiff cannot prove that (1) the restriction notice or the opposition to his unemployment benefits application is false; (2) Defendant did not publish the restriction notice; 14 (3) Defendant acted negligently; and (4) he suffered actual damages. Dkt. 24 at 22B24. 15 Defendant argues that even if the notice was published, this action was privileged because Wal- 16 Mart shared a Acommon interest@ with third parties to keep the store safe. Dkt. 24 at 24. 17 Furthermore, Defendant contends that it has Aabsolute immunity under RCW 4.25.510 for 18 statements made to the ESD in defense of Plaintiff=s benefits claim.@ Dkt. 24 at 25. Plaintiff does 19 not dispute Defendant's arguments and it appears that the facts of the case support them. Namely, Defendant had a proper rationale to restrict Plaintiff from the property. Dkt. 25-2 at 40; see Dkt. 20 21 25-2 at 48 (Plaintiff showed up on Wal-Mart property after his termination and spoke with Mr. Sleight); see Dkt. 25-2 at 48-49, 52 (Plaintiff's ex-wife had a restraining order against him and he 22 tried to speak with her on Wal-Mart property); and, see Dkt. 25-3 at 44 (Plaintiff used profanity 23 when he came back on Wal-Mart property after his termination). For these reasons, the Court 24 should grant the Defendant's motion for summary judgment on Plaintiff's claim of defamation. Page 28 - ORDER 1 Finally, because this Court should grant the Defendant's motion for summary judgment 2 on all issues, the Court will not address Defendant's argument that after-acquired evidence cuts 3 off Plaintiff's alleged damages. Dkt. 24 at 26. 4 IV. DEFENDANT'S MOTION TO DISMISS UNTIMELY JURY DEMAND AND FOR 5 SETTING OF BENCH TRIAL: The Court has determined that it should grant Defendant's motion for summary judgment, 6 7 8 and as a result, Plaintiff's claims will be dismissed. For this reason, the Court should strike Defendant's Motion to Dismiss Untimely Jury Demand and for Setting of Bench Trial (Dkt. 22) because it is moot. All other pending motions are moot. 9 V. ORDER 10 Therefore, it is hereby, ORDERED that: 11 $ Defendant=s Motion for Summary Judgment (Dkt. 24) is GRANTED; 12 $ Defendant=s Motion to Dismiss Untimely Jury Demand and for Setting of Bench Trial (Dkt. 22) is STRICKEN AS MOOT; 13 14 15 16 $ Plaintiff's Motion in Limine (Dkt. 65) is STRICKEN AS MOOT; $ Defendant's Motion in Limine (Dkt. 66) is STRICKEN AS MOOT; $ Plaintiff's Motion for Extension of Time (Dkt. 68) is STRICKEN AS MOOT; $ Plaintiff=s claims are DISMISSED; and The Clerk is directed to send uncertified copies of this Order to all counsel of record and 17 18 to any party appearing pro se at said party=s last known address. DATED this 21st day of December, 2009. 19 A 20 ROBERT J. BRYAN United States District Judge 21 22 23 24 Page 29 - ORDER

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