Crawford v. PUD # 1 of Cowlitz County

MOTION for Summary Judgment

W.D. Wash.Dec 19, 2017

STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 HONORABLE RICHARD J. BRYAN UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA KELLY CRAWFORD, Plaintiff, v. PUD #1 OF COWLITZ COUNTY, a municipal corporation, Defendant. No. 3:16-cv-5943 RJB DEFENDANT’S MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION AND RELIEF REQUESTED Kelly Crawford lost his job as an apprentice meterman with the Cowlitz Public Utility District (“PUD” or the “District”) because he performed poorly, was unreceptive to constructive criticism and engaged in repeated insubordinate behavior. The District is entitled to summary judgment on Crawford’s claims for retaliation, wrongful discharge in violation of public policy and “regarded as” disability discrimination because: • Crawford has no evidence that he was performing adequately; • Crawford cannot establish “protected activity” because he complained about isolated, trivial comments that were not actionable discrimination; • Crawford cannot establish that any of his complaints relate to a clear public policy; • The District had legitimate, non-discriminatory reasons for the actions that Crawford believes were retaliatory and discriminatory; • Crawford cannot establish that the District’s legitimate reasons are pretextual; and Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 1 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 2 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 • Crawford cannot establish that his position remained open or that the District continued to look for applicants after his termination. Crawford’s other claims (failure to accommodate, emotional distress, and wages) also fail as a matter of law. The District respectfully requests that the Court grant summary judgment and dismiss all claims with prejudice. II. FACTUAL AND PROCEDURAL BACKGROUND A. Crawford had a checkered employment history at the District. Kelly Crawford had trouble getting along with co-workers throughout his employment at the District and had a history of complaining that he had been mistreated. As far back as 2007, Crawford’s supervisor, Steve Brock,1 learned that Crawford was having confrontations with co- workers and counseled Crawford about the need to get along with co-workers. Ex. A to Wall Decl. (Brock Dep. Tr.15:24-16:16). In 2007 Crawford attempted to bid into a meter tester position, but he lacked the required algebra skills. Ex. B to Wall Decl. (CRAWFORD 1919–21). Crawford filed a grievance and complained, “I have been kept out of two jobs that were rightfully mine,” and he stated, “I no longer plan on finishing my career here.” Ex. B to Wall Decl. (CRAWFORD 1919–21,1925). Crawford later told his co-workers that he “believed that he was discriminated against on that.” Ex. C to Wall Decl. (Crawford Dep. Tr. 64:12–18). In 2009, a co-worker anonymously wrote, “Fire Kelly” on the PUD suggestion board. 1 There are a number of names to keep straight. This footnote might serve as a handy reference: Kelly Crawford – apprentice meterman (Plaintiff) Bart Leider – journeyman meterman and foreman of the meter department Lyle Kellar – journeyman meterman Tony Park – journeyman meterman Kevin Grabenhorst – journeyman meterman Steve Brock – Crawford’s supervisor – JATC employer member Chris Marlowe – Brock’s supervisor – JATC employer member Marisa Keeney – HR Steve Kern – General Manager – decision maker regarding termination Jeff Sorensen – Crawford’s former supervisor –JATC employer member Ryan Gibson - investigator Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 2 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 3 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 Brock Decl., ¶3, Ex. A (CPUD_KC 002068-71). Crawford emailed Brock, claiming that he was being “harassed” and “discriminated against” and that this created a “hostile work environment.” Id. Brock investigated2 the incident but could not learn who had written the comment and could not substantiate Crawford’s claims that he was being “harassed” and “discriminated against” or that there was a “hostile work environment.” Brock Decl., ¶ 3. B. Crawford struggled to progress through his apprenticeship. In 2013, Crawford moved into the meter department as a meter tester. In August 2014, Crawford bid into a meterman apprenticeship, the position at issue in this case. The apprenticeship consists of six stages (or “steps”). Keeney Decl., ¶ 3 and Ex. A. Each step typically lasts six months. Id. Apprentices are evaluated by the Joint Apprenticeship & Training Committee (“JATC”), which is made up of employee and employer representatives. Keeney Decl., ¶ 3 and Ex. E. As an apprentice, Crawford was trained and evaluated by the meter department’s four journeyman metermen: Bart Leider (foreman), Lyle Kellar, Tony Park and Kevin Grabenhorst. Keeney Decl., ¶ 8. Crawford’s supervisor was Brock. Ex. A to Wall Decl. (Brock Dep. Tr. 10:12–24). Brock’s supervisor was Chris Marlowe. Id. at 17:23-18:10. Crawford had a strained relationship with Leider and Kellar. He did not trust them. In October 2014, Crawford wrote, “Does my foreman know his job? How can I rely on him to teach me?” Ex. E to Wall Decl. (CRAWFORD 518). Crawford wrote in his journal that Leider made “smart ass remarks” to him. Id. (CRAWFORD 519). Crawford’s has a long history of mistrust with Leider — Crawford believed (without any evidence) that Leider wrote the 2009 “FIRE KELLY” comment. Almost from the beginning of his apprenticeship, it was apparent that Crawford struggled with applying the book-learning portion of the job (the classroom work took place early in the apprenticeship) to the real work in the field. Ex. E to Keeney Decl. (CPUD_KC 336–37, 339, 2 The District has a strict policy against discrimination and retaliation. Ex. G to Keeney Decl. Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 3 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 4 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 497). In January 2015, Leider informed the JATC that Crawford was “in his first step and doing first step work” and that Leider expected him to improve with time. Id. (CPUD_KC 497). Although Leider recommended to the JATC that Crawford move to the second step of his apprenticeship, Ex. E to Keeney Decl., he noted in evaluations that Crawford had trouble retaining information and applying it in the field. In March 2015, Leider wrote: “Kelly struggles with situations [where] he feels unsafe even after his journeyman explains what could happen and what he should do to correct it.” Ex. D to Keeney Decl. (CPUD_KC 362). Other journeyman noted the same problem. Kellar’s March 2015 evaluation stated: “When confronted with less than ideal conditions and non-text book situations in the field, Kelly has two choices regarding safety. Either trust the journeyman has taken proper measures and [accept] the tail board[3] explanation or have a better understanding of the concept in question. Journeyman doing the apprentice job is not an option.” Id. (CPUD_KC 363). Crawford wrote about the March 2015 evaluations in his journal, acknowledging that he was upset with the poor performance reviews he received from Leider, Kellar and Park. Ex. E to Wall Decl. (CRAWFORD 531). The journeymen had a meeting with Crawford and, according to Crawford, Leider told Crawford that he “needed to trust [his] journeymen [and] do what [he] was told.” Id. Crawford rejected this advice. Id. The journeymen’s concerns continued. In March 2015, Park wrote: “I believe Kelly has the ‘want’ to be a journeyman meterman. That being said, Kelly learns and retains information unlike anyone I have ever dealt with in my career in the electrical field. . . .” Ex. D to Keeney Decl. (CPUD_KC 364). In May 2015, Kellar wrote, “Kelly appears to be apprehensive working around energized conductors. I believe this hinders his ability to work efficiently as well as safe[ly].” Id. (CPUD_KC 365). Leider’s May 2015 evaluation stated: “Kelly rattles easily when confronted with situations out of the ordinary.” Id. (CPUD_KC 367). Kellar’s July 2015 3 Tailboards are safety meetings that take place on every shift. Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 4 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 5 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 evaluation stated that Crawford “may need to find a way to better retain fundamental metering skills and math.” Id. (CPUD_KC 374). C. Crawford was defensive and unable to accept criticism. Rather than embrace the advice the journeymen were giving him, Crawford responded defensively. For example, journeyman Kellar developed test questions to help Crawford identify areas that Crawford had mastered and areas where he needed additional attention. Ex. A to Wall Decl. (Brock Dep. Tr. 59:24–60:9); Ex. B to Brock Decl. But Crawford wrote in his journal, “I feel that these tests are just being used as a tool against me in case someone wants to get rid of me.” Ex. E to Wall Decl. (CRAWFORD 542). Crawford complained to Brock that Kellar’s tests were intended to “trip him up.” Ex. A to Wall Decl. (Brock Dep. Tr. 59:24–60:9). Brock investigated the tests and found that Kellar was “trying to help [Crawford] with his knowledge base.” Id. (Brock Dep. Tr. 59:24–60:9). In his deposition, when asked about why Kellar would have given him tests to trip him up, Crawford testified, “There was [sic] a couple safety things that Lyle had done that I had brought up, you know, with my foreman. That might have had something to do with it.” Ex. C to Wall Decl. (Crawford Dep. Tr. 172:6–15) (emphasis added). In September 2015, the JATC noted that Crawford was receiving only average reviews and “low reviews at accepting criticism and knowledge retention.” Ex. E to Keeney Decl. (CPUD_KC 501). Leider explained that Crawford was resistant to efforts to train him: Bart Leider stated that Lyle Kellar is training Kelly and has the best intentions for him. Lyle has put together tests with the assistance of Chris Marlowe for Kelly to take. The tests are only meant to find out where Kelly is at in his understanding of the work. This helps Lyle know the areas that Kelly is lacking in and needs more training. Unfortunately Kelly is upset about the tests since no one else has ever had to take them. Bart mentioned that everyone teaches different and feels that these tests will only help Kelly. . . . . They will have to see how Kelly’s performance is in this 3rd step and then discuss as a committee if they are comfortable moving Kelly to the 4th step. He does not have to shine but he does need to have the knowledge or Kelly will need to be held back. Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 5 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 6 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 Bart Leider [moved] that Kelly Crawford advance from the 2nd step to the 3rd step. Mike Lee second[ed] the motion. None opposed. Id. (CPUD_KC 502). In his third step, Crawford continued to struggle and received poor reviews. Kellar’s September 2015 evaluation stated: “At this stage all 1Ø4 applications of metering should be easy to comprehend. Any abnormalities faced in the field should be easily recognized with proper use of multimeters. Kelly struggles with applying basic ohms law to extraordinary situations.” Ex. D to Wall Decl. (CPUD_KC 378). In October 2015, Crawford’s evaluation said: “needs improvement.” Id. Crawford knew he was struggling, but could not accept accountability for his own failings. In October 2015, Crawford wrote in his journals that “nearly every day Bart finds something to get mad at me about. Whether I’m using a cart too long or can’t remember a meter number he gets upset.” Ex. E to Wall Decl. (CRAWFORD 551–52). Crawford’s November 2015 evaluation repeated a familiar theme: “Kelly . . . struggles when faced with unique problems that require the application of metering theory.” Ex. D to Keeney Decl. (CPUD_KC 435). D. Crawford refused to discuss his performance and instead accused Kellar of unsafe driving. In December 2015, Brock had an informal meeting with Crawford because he had been hearing bad “things about [Crawford’s] job performance” and was concerned. Ex. A to Wall Decl. (Brock Dep. Tr. 35:3–23); Exs. G and H to Wall Decl. (Responses to Interrogatory No. 14). However, Crawford refused to discuss his performance problems; instead, Crawford shifted gears and told Brock that in April 2015 Kellar had been involved in a driving incident in which Kellar followed another driver in a PUD van and confronted her in a parking lot. Wall Decl., Ex. A (Brock Dep. Tr. 21:4–16); Ex. F (Crawford Dep. Tr. Vol. II 318:7–19); Exs. G and H (Response to Interrogatory No. 14); Ex. C (Crawford Dep. Tr. 169:4-23). Brock took 4 This symbol stands for single phase, which is a basic metering task. Brock Decl., ¶ 4. Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 6 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 7 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 Crawford’s concerns seriously and investigated them.5 Ex. A to Wall Decl. (Brock Dep. Tr. 39:2–24). The journeymen told Brock that they thought that Crawford might have been describing a driving incident that Crawford himself had. Id. (Brock Dep. Tr. 37:21–38:5).6 In July 2015 Crawford put a post on Facebook about an incident in which he chased down another driver and confronted him in a parking lot. Today I was driving [and a] big lifted Dodge came speeding past me going about 50 mph and passing several cars at a time. . . . I was pretty annoyed that someone would do something so dangerous and risk lives like that. This started to anger me. I happened to be going the same direction as he was and when he pulled into Lowes, the aggressive side of my reptilian brain decided to follow and have a chat with the fella. I parked across from him and walked over ready to give him a piece of my mind. At first he just sat in his truck fiddling with his phone, I could tell he wasn’t prepared for trouble. But I was ready to give it . . . . I said to the bearded Fella, in a calm but firm voice, “ Did you ever stop to consider what would happen if a child was crossing the street while you were driving like that?” No he had not. . . . I then asked him to shake my hand so I could leave him in peace with his thoughts. At first he would not shake my hand, so then I said in a low steady voice, “Dude, you really need to shake my hand.[”] He got my point, shook my hand, and we parted ways. Ex. I to Wall Decl. (CRAWFORD 168) (emphases added).7 E. In February 2016, Crawford was given extra time in the apprenticeship program because he was not ready to progress to the next step. In January 2016, Kellar wrote: “Based on observations in the field, I do not believe Kelly 5 During Brock’s deposition, Crawford’s counsel suggest that Brock had retaliatory animus toward Crawford because Crawford had reported Kellar’s driving. Ex. A to Wall Decl. (Brock Dep. Tr. 38:6–39:24). Brock explained that he did not perceive Crawford’s complaint as insubordination — “The insubordination was [Crawford’s] refusal to talk about the subject at hand, which was his own performance.” Id. at 39:2–13. Brock testified that he routinely investigates employee complaints and takes appropriate corrective action if necessary. Id. at 38:19–39:1. 6 In his deposition, Crawford claimed that Kellar was biased against him “probably because” Crawford had reported Kellar’s alleged driving incident to Brock. Ex. C to Wall Decl. (Crawford Dep. Tr. 169:4–11). Crawford admitted that he did not think that Brock had retaliated against him for making this report. Ex. F to Wall Decl. (Crawford Dep. Tr. Vol. II 319:7–18). 7 In his deposition, Crawford admitted that he wrote this and that the incident occurred as he described it, but he insisted that he never tried to intimidate anyone “in [his] entire life.” Ex. C to Wall Decl. (Crawford Dep. Tr. 214:3–9). But see Ex. S to Wall Decl. (PLTF-FB 805). Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 7 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 8 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 is where he should be at this step.” Ex. D to Keeney Decl. (CPUD_KC 447). In February 2016, the JATC reviewed Crawford’s performance: Across the board on all evaluations Kelly continues to get remarks that he is having a hard time retaining the information he is learning. . . . Kelly seems to think there is a conspiracy theory against him. . . . Chris [Marlowe] tried to explain to Kelly that this is all to help him, not intended to work against him. . . . . The group agreed it is not a lack of effort. Kelly is just not able to retain the information he is learning. Kevin Grabenhorst said they will be in the field working and Kelly will act like he has never seen the work that is being asked of him to perform; even though he has been taught. Kevin also stressed his concern of Kelly not being able to retain information. Jeff Sorensen said that they had the same situation when Kelly was a groundman on the line crews. He was not able to apply what he had learned and be able to perform it in the field. . . . . Steve Brock finds this very concerning that Kelly blames others for his short comings and cannot take criticism or look at himself as being the problem. . . . . Chris Marlowe recapped that they all agree: Kelly is not confident in what he is doing, every job is like a new job, he struggles with making decisions, he is not able to think outside the box, he is lacking the core knowledge it takes to perform the work being asked of him, and he does not seem comfortable with what he is doing. Chris asked if they should give Kelly 3 months or 6 months to see if he can show improvement. Jeff Sorensen suggested that after 3 months the group gets back together to see what Kelly’s progress is. At that time they can discuss whether they give Kelly more time.[8] Lyle Kellar seconded the motion to hold back the advancement. None opposed. Ex. E to Keeney Decl. (CPUD_KC 505–507) (emphasis added). On February 24, 2016, the JATC informed Crawford that he was being held back and would not progress to the fourth step of the apprenticeship program at that time. Crawford did not take the news well. He wrote in his journal about it: Up until this point in my apprenticeship, I have had some ups and downs. But over the past few months I thought I was doing pretty well. . . . Chris [Marlowe] 8 At times Crawford has claimed that he should have been given six months rather than three months, but ultimately he admitted that the length of time he was held back is not “part of the basis for [his] lawsuit.” Ex. C to Wall Decl. (Crawford Dep. Tr. 170:12–15). Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 8 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 9 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 told me that my crew had decided I wasn’t ready to move forward . . . . I was caught totally off guard. I kept my cool though. I feel this is retaliation for me complaining about the tests they are making me take that no one else has ever had to take and about the testing process with Lyle looking over my shoulder. Ex. E to Wall Decl. (CRAWFORD 563) (emphasis added). Crawford wrote on his Facebook page that he felt he was at a crossroads in his life and needed God’s help. Ex. I to Wall Decl. (CRAWFORD 134). F. Co-workers reported that Crawford may be suicidal. Throughout March 2016, Crawford had significant “unsatisfactory” performance reviews. Ex. D to Keeney Decl. (CPUD_KC 451–54). At the end of March 2016, in a conversation with a co-worker, Crawford said, “If not for my daughter, I wouldn’t be here” or words to that effect. Ex. B to Keeney Decl. (CPUD_KC 881–82, 884). Co-workers reported that they were concerned that Crawford might be suicidal. Id.; see also Exs. O and L to Wall Decl. (Pentland Dep. Tr. 8:3–21, 9:1–9; Park Dep. Tr. 25:14–17, 27:21–28:4). On March 28, 2016, Marisa Keeney and Brock met with Crawford to offer him services from the Employee Assistance Program. Crawford denied being suicidal, and he thought that someone was “making up stuff just to get rid of [him].” Ex. E to Wall Decl. (CRAWFORD 578). Crawford “decided to tell them of the things that were going on in [the meter] shop.” Id. At that point, Crawford reported racist and sexist comments and safety issues and that the journeymen were subjecting him to a “hostile work environment.” Id. Crawford had never raised any of these issues with HR before then. G. Crawford threatened to expose “dirt” on the journeymen unless Park pushed Crawford through the apprenticeship. On March 29, 2016, the day after he met with Keeney and Brock, Crawford had a long conversation with Park. Park told Crawford that Crawford should apply for other job openings at the PUD. Ex. L to Wall Decl. (Park Dep. Tr. 18:17–19:20). In his deposition, Park recounted Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 9 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 10 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 the conversation: A: [Crawford] basically threatened me with blackmail if I didn’t take him under [my] wing and get him through the apprenticeship, and that’s not how we work and I made that very clear to him. Q: What did he say specifically to you that made you believe that he was blackmailing you? A: I can’t quote him word for word, but it was something to the effect of he got upset and hit my dash and said that if I didn’t -- there might have been some foul language thrown around, and then something to the effect of if you don’t take me under . . . your wing -- you and Kevin -- he mentioned Kevin’s name at the same time. If I didn’t take him under my wing and get him through his apprenticeship, even if it took longer than the allotted time that we had, that he was going to -- he had dirt, whatever that translated into, on -- I know he specifically said Bart and Lyle, and I think he mentioned Chris Marlowe’s name at the same time. But anyway, that he had dirt on them, and if he was going to be fired, so were they. Q: And you were offended by those statements? A: Offended? I was shocked. I don’t know if offended would be the word, but that’s not how we work. Id. (Park Dep. Tr. 19:25–21:1). Park told Leider, Kellar and Brock about what Crawford had said. Id. (Park Dep. Tr. 25:14–17). H. The District conducted an investigation into Crawford’s complaints. The District took Crawford’s complaints about racist and sexist remarks and safety issues seriously and conducted an investigation. The District put Crawford on paid administrative leave and hired outside counsel, Ryan Gibson.9 Gibson conducted a thorough, unbiased investigation into Crawford’s allegations. Gibson interviewed all four of the journeyman, Brock and he interviewed Crawford twice. Ex. B to Keeney Decl.; Exs. J, K and N to Wall Decl. The journeymen told Gibson that they were aware of Crawford’s safety allegations, but 9 One of the things Crawford complains about is that he was put on leave, instead of the people he was complaining about. Ex. C to Wall Decl. (Crawford Dep. Tr. 231:16-232:4). Apparently, Crawford’s position is that the entire metering department – except himself and perhaps Grabenhorst – should have been put on leave. Obviously, the District had an electrical utility to run, and Crawford’s position that the entire department except for one apprentice, be put on leave, is just not practical. Keeney Decl., ¶ 9. Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 10 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 11 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 that Crawford’s concerns “are simply not valid safety complaints. Instead, they said, Kelly’s safety concerns resulted from the same things that are causing Kelly to struggle in his apprenticeship--his fundamental ignorance of and lack of familiarity with basic metering concepts and skills.” Ex. B to Keeney Decl. (CPUD_KC 885). The journeymen recalled several instances where Crawford reported feeling unsafe, but that in fact, there was nothing unsafe about the situation. Id. Crawford told Gibson that he had been meticulously documenting incidents of racism, sexism and unsafe behavior over the years in his voluminous notebooks. Id. (CPUD_KC 883). He told Gibson that Leider had used racial slurs on five or six occasions over a three-year period from 2013 to 2015. Id. (CPUD_KC 887). Crawford also told Gibson that Leider and Kellar and someone else Crawford did not want to name had made a few sexist remarks. Id. (CPUD_KC 888). Gibson found that the journeymen credibly denied having made these comments or having overheard such comments. Id. (CPUD_KC 889–90). Gibson concluded that Crawford’s claims of racism, sexism, unsafe behavior and hostile work environment were unsubstantiated. Id. (CPUD_KC 890). Gibson’s investigation also revealed the details of Crawford’s threat to Park that Crawford would expose “dirt” on Kellar and Leider. Id. (CPUD_KC 892). Gibson provided the District with a report on his investigation findings. Id. I. The District returned Crawford to work and tried to help him get back on track. On May 6, 2016, the District told Crawford the results of the investigation, and provided him with a Work Plan Expectations and Guidelines to clearly spell out what he needed to do to be successful. Keeney Decl., ¶ 9 and Exs. F and H. The District explained that Crawford needed to trust the journeymen and that he had “to be willing to accept constructive criticism.” Id., Ex. F. The District asked the journeymen to provide daily feedback and more frequent evaluations in hopes that they could catch and correct anything that was going wrong with Crawford’s apprenticeship. Id. Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 11 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 12 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 Crawford returned to work on May 9, 2016 with a chip on his shoulder. When Crawford learned that the investigation found his claims unsubstantiated, he “angrily blurted out ‘BULLSHIT.’ ” Ex. J to Keeney Decl. That week Crawford encountered a metering task that he had approached previously, and he was planning to “approach it the same exact way” but was told that his approach was wrong. Ex. C to Wall Decl. (Crawford Dep Tr. 279:4–280:23). That same week, while working with Grabenhorst, Crawford tried to use a Probewell tester that was not working. Ex. P to Wall Decl. (Grabenhorst Dep. Tr. 21:23–24:13). Crawford should have been able to identify the problem with the Probewell. Id. Crawford reported to Brock that he believed the Probewell had been sabotaged to make him fail. Ex. A to Wall Decl. (Brock Dep. Tr. 59:7–17). Brock investigated and found that there was a reasonable explanation for why the Probewell was not working and that Crawford should have been able to diagnose the problem. Id.; Ex. B to Brock Decl. (CPUD_KC 85); see also Ex. P to Wall Decl. (Grabenhorst Dep. Tr. 23:6–13, 34:21–25). Crawford also had a negative interaction with Kellar, while fixing a meter base at Kentucky Fried Chicken. Ex. C to Wall Decl. (Crawford Dep. Tr. 274:12–275:8). Kellar was trying to ask Crawford questions about the job, and the exchange ended with Crawford believing that Kellar was “trying to trip [him] up” and Crawford saying, “What are you trying to ask me? . . . Just tell me what you want to know and I will answer the question. . . . Just ask me a direct question and I’ll answer it, but I don’t know what you’re asking me.” Id. All of Crawford’s evaluations for that week were bad — he failed to recognize issues in the field that he should have been able to diagnose, he rejected input from his co-workers and he suspected everyone was out to get him, which made it impossible to give him any constructive criticism. Ex. D to Keeney Decl. (CPUD_KC 458–63, 67–68). Crawford believed these events were evidence that the journeymen were trying to sabotage him, and he admitted that he felt frustrated. Ex. C to Wall Decl. (Crawford Dep. Tr. 278:19–24). On May 12, 2016, Crawford told Marlowe that he was going home because he felt Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 12 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 13 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 “sick” and that “he would not be in tomorrow either.” Ex. I to Keeney Decl. (CPUD_KC 79). That same day, Park contacted Keeney and told her that Crawford “blew up today.” Id. Park reported that Crawford had said that he was “going to a gun show tomorrow in Vancouver to buy a .22” and Park asked “what the District could do to make employees feel safe.” Id. In response to these concerns, the General Manager, Steve Kern, held a meeting with the meter and relay departments and asked whether people sincerely felt that Crawford “could be a danger to himself . . . or anyone else,” and the employees indicated they did not feel comfortable with Crawford. Ex. M to Wall Decl. (Kern Dep. Tr. 23:5–24:8); Ex. I to Keeney Decl. Because of Crawford’s performance issues, his inability to retain information and apply it in the field, his inability to accept feedback, his insubordination toward the journeymen, Kern decided to terminate Crawford’s employment. Ex. M to Wall Decl. (Kern Dep. Tr. 7:16-8:13, 21:1–11, 21:22–22:18, 23:5–24:8); Keeney Decl., Ex. C. That day from home, Crawford wrote an email to Kern stating that he felt he was about to lose his job. Ex. Q to Wall Decl. (CPUD_KC 000815). Based on “the way that Lyle was twisting his questions around to try to make me answer them incorrectly, or the part being removed from the probe well” Crawford “believe[d] that they were trying to get rid of [him].” Ex. F to Wall Decl. (Crawford Dep. Tr. Vol. II 415:3–9). Crawford did not return to work on Friday May 13, 2016. He was informed of his termination on Monday May 16, 2016. Ex. C to Keeney Decl. In September 2016, Crawford filed suit, alleging (1) retaliatory discharge for reporting sexist and racist comments; (2) wrongful discharge in violation of public policy for reporting safety issues; (3) discriminatory termination for perceived disability; (4) failure to accommodate his perceived disability; (5) negligent infliction of emotional distress; (6) intentional infliction of emotional distress; and (7) nonpayment of wages under the Washington Minimum Wage Act and the Fair Labor Standards Act. Dkt. 1. Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 13 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 14 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 III.ARGUMENT AND AUTHORITY A. The summary judgment standard. “In a summary judgment motion, the moving party bears the initial burden of showing the absence of an issue of material fact.” Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). The moving party may meet this burden by establishing “that there is an absence of evidence to support the nonmoving party’s case.” Id. at 225 n.1 (citation omitted). If the moving party meets this burden, then the burden “shifts to the party with the burden of proof at trial, the plaintiff.” Id. at 225. If the plaintiff cannot produce admissible evidence to “establish the existence of an element essential to that party’s case . . . then the trial court should grant the motion.” Id. at 225, 242. B. Crawford cannot establish that he engaged in protected activity under WLAD. The Washington Law Against Discrimination (“WLAD”) prohibits discrimination “against any person in compensation or in other terms or conditions of employment.” RCW 49.60.180(3) (emphasis added). The statute also prohibits discrimination “against any person because he or she has opposed any practices forbidden by this chapter.” RCW 49.60.210(1) (emphasis added). To establish a prima facie case of retaliation under the WLAD, a plaintiff must offer admissible evidence to show that (1) he engaged in statutorily protected activity, (2) he suffered an adverse employment action, and (3) there was a causal link between his protected activity and the adverse action. Currier v. Northland Servs., Inc., 182 Wn. App. 733, 742–43, 332 P.3d 1006 (2014). To establish that he engaged in “protected activity,” the employee must prove that he had a reasonable, good-faith belief that he was opposing actionable discrimination. Pullela v. Intel Corp., 467 F. App’x 553, 554 (9th Cir. 2012); Kahn v. Salerno, 90 Wn. App. 110, 130, 951 P.2d 321 (1998) (holding that protected activity requires opposition to “conduct that is at least arguably a violation of the law”); Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006) (holding opposition activity must be “based on a reasonable belief that the employer has engaged in an Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 14 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 15 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 unlawful employment practice” (emphasis in original) (citation and internal quotation marks omitted)).10 The anti-discrimination statutes prohibit discrimination in the “terms or conditions of employment.” RCW 49.60.180(3). Courts have long held that isolated racist or sexist comments do not affect the “terms or conditions of employment” unless they are sufficiently severe or pervasive to create a hostile work environment. State v. Boeing Co., 105 Wn. App. 1, 10, 19 P.3d 1041 (2000) (“Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.”); Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’ ”). In Pullela, the plaintiff alleged she was terminated in retaliation for complaining that her co-worker was flirtatious and received preferential treatment. 467 F. App’x at 554. The court held that she had not engaged in protected activity: While Pullela was not required to know the finer points of the law governing sexual discrimination when she made her complaint, Moyo v. Gomez, 40 F.3d 982, 985 (9th Cir. 1994), . . . this Court [has] long recognized that sexual favoritism alone does not amount to sexual discrimination. Candelore v. Clark Cnty. Sanitation Dist., 975 F.2d 588, 590 (9th Cir. 1992). . . . In short, Pullela has not shown that she had a good-faith [reasonable] belief that she was reporting sexual discrimination when she reported the flirtatious behavior and preferential treatment. 10 If an employee complains about conduct that is not even arguably a violation of the antidiscrimination statutes, the employee cannot establish “protected activity.” Compare Johnson v. Boeing Co., No. CV C17-0706RSL, 2017 WL 5458404, at *2 (W.D. Wash. Nov. 13, 2017) (holding complaints regarding safety and fraud were not protected activity under Title VII or WLAD), Manzo v. Laborers Int’l Union of N. Am., 348 F. App’x 267, 268–69 (9th Cir. 2009) (holding complaints about supervisor’s “scary” behavior was not protected activity), and Ballard v. Portland Gen. Elec. Co., 293 F. App’x 448, 450 (9th Cir. 2008) (holding general complaints about a supervisor are not protected actions), with Sermonia v. Amazon.com, Inc., No. C04- 2337JLR, 2006 WL 223755, at *3 (W.D. Wash. Jan. 30, 2006) (holding employee who reported that employer was hiring Caucasians to replace minorities could have a reasonable belief that he was opposing arguable violations of Title VII or WLAD). Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 15 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 16 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 Id. Here, Crawford does not allege that he complained about a tangible adverse employment action directed at a person in a protected class. Wall Decl., Ex. N (CPUD_KC 841). Crawford claims that he complained about a few isolated racist and sexist comments by co-workers made over a long period of time.11 Wall Decl., Ex. C (Crawford Dep. Tr. 117:5–8, 133:10–15, 157:12–19, 158:4–9, 245:4–9); Ex. G (Plaintiff’s response and supplemental response to Interrogatory Nos. 12 and 14); Ex. H (2nd Amended Response to Rog 12). Crawford does not allege that the comments were directed at him or directed toward a member of a protected class. Id.; Ex. N to Wall Decl. (CPUD_KC 841). This is legally insufficient. In Bermudez v. TRC Holdings, Inc., 138 F.3d 1176 (7th Cir. 1998), the court rejected a similar theory: None of these words or deeds was directed against [the plaintiff, who is a white woman]. White women were welcome at TRC and fared well there. Perhaps TRC was violating the rights of persons who came to it seeking placement for employment, but the plaintiff is not entitled to enforce their rights and does not claim that she was retaliated against for sticking up for the rights of black co- workers or clients. . . . Her claim is not that white women were harassed on account of their race or sex, but that persons of any race or sex who were opposed to discrimination felt uncomfortable. We have never recognized this as a valid theory of discrimination . . . and it is hard to see how it could be reconciled with the proposition that laws must be enforced by the victims (or by public prosecutors) rather than by third parties discomfited by the violations. If unease on observing wrongs perpetrated against others were enough to support litigation, all doctrines of standing and justiciability would be out the window. Id. at 1180. See also Jackson v. Deen, 959 F. Supp. 2d 1346, 1351–52 (S.D. Ga. 2013) (“At best, Plaintiff is an accidental victim of the alleged racial discrimination.”); Childress v. City of Richmond, Va., 134 F.3d 1205, 1207 (4th Cir. 1998) (holding plaintiffs did not have standing to bring claim for discrimination directed at others). The alleged conduct Crawford opposed (isolated and trivial racist and sexist comments made several years ago) does not come close to “severe or pervasive” conduct that would affect the “terms or conditions” of employment. See Pullela, 467 F. App’x at 554. Moreover, 11 Witnesses uniformly denied making or overhearing any of the alleged racists and sexist remarks, but for purposes of this motion, the Court may accept Crawford’s allegations as true. Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 16 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 17 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 Crawford cannot assert that it affected his terms or conditions of employment because he is merely a “third part[y] discomfited by the [alleged] violations.” Bermudez, 138 F.3d at 1180. Thus, even if Crawford subjectively believed that the conduct was unlawful, his subjective belief was not reasonable. See id. Because Crawford could not have reasonably believed that he was opposing actionable conduct, he did not engage in “protected activity.” As a matter of law, therefore, the WLAD retaliation claim must be dismissed. C. Crawford cannot establish the clarity element of his public policy claim. To establish a wrongful discharge in violation of public policy, “[t]he employee carries the burden initially of proving the existence of a clear public policy.” Martin v. Gonzaga Univ., 200 Wn. App. 332, 353, 402 P.3d 294 (2017). “The courts insist that the public policy at issue be judicially or legislatively recognized, emphasizing that the tort is a narrow exception to the at- will doctrine and must be limited only to instances involving very clear violations of public policy.” Id. Here, Crawford complained about a host of issues that he had documented meticulously in his journals.12 But Crawford did not complain about anything that was a violation of public policy. Paolini v. Albertson’s Inc., Plan Adm’r, 482 F.3d 1149, 1153 (9th Cir. 2007) (holding that unless complaints concern matter of clearly-expressed public policy, the complaints are “not protected as a matter of public policy”). First, Crawford claims that Kellar attempted to follow and reprimand another driver and that Crawford complained about it to Brock. Exs. G and H to Wall Decl. (Response to Interrogatory Nos. 5 and 14). Crawford does not allege that Kellar was driving while intoxicated or that Kellar violated traffic laws. Id. Crawford cannot establish that this incident involved any violation of law or public policy. Even if Crawford could identify a public policy violation, 12 Crawford complained about the District disposing of meters without testing them, oil leaks from transformers, PCBs, illegal bidding, and illegal purchasing among other things. But Crawford has admitted that these complaints are not the basis for his lawsuit. Exs. C and F to Wall Decl. (Crawford Dep. Tr. 106:1-22; Crawford Dep. Tr. Vol. II 379:11–380:11). Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 17 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 18 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 Crawford admitted that he engaged in nearly identical conduct. Ex. I to Wall Decl. (CRAWFORD 168). To support a wrongful discharge retaliation claim, the complaint must be in good faith. Pullela, 467 F. App’x at 554. Crawford cannot in good faith complain about conduct that he himself engaged in. Second, Crawford identified a number of “unsafe” work situations. In one instance, he claimed that Kellar made a wiring mistake and that it could have harmed Crawford. Ex. C to Wall Decl. (Crawford Dep. Tr. 172:16-173:2). A mistake by an employee is not a violation of public policy. Similarly, Crawford claimed that there was a safety issue caused by Leider’s method of lowering an elevated electrical pole. Id. at 156:1-5. As Gibson’s investigation found, Crawford’s safety concerns arose out of his lack of understanding. Ex. B to Keeney Decl. But even if there was a legitimate dispute about how to do the work, that does not establish that the District took any action that violated a clear public policy. Crawford fails to establish a prima facie wrongful discharge claim and that claim should be dismissed. D. Crawford cannot establish a prima facie case of perceived disability disparate treatment under WLAD. In Mikkelsen v. Public Utility District No. 1 of Kittitas County, 404 P.3d 464 (Wash. 2017), the Washington Supreme Court adopted a new standard for WLAD discrimination claims: To make a prima facie case of perceived disability discrimination under the WLAD, the plaintiff must show (1) he was regarded as having a disability; (2) he was discharged by the employer; (3) he was doing satisfactory work; and (4) the position remained open and the employer continued to seek applicants with qualifications similar to the plaintiff. Id. at 470; Richards v. Healthcare Res. Grp., Inc., 131 F. Supp. 3d 1063, 1071 (E.D. Wash. 2015). Crawford cannot establish the third or fourth elements. 1. Crawford cannot establish that he was performing satisfactory work. Crawford failed to meet performance expectations, and he engaged in insubordinate behavior and made coworkers feel unsafe or uncomfortable. See supra Section II. Crawford has Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 18 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 19 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 no admissible evidence to establish that he was meeting his employer’s expectations. Crawford’s perception of his own performance is irrelevant. Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359–60, 753 P.2d 517 (1988). See Wall Decl., Ex. C (Crawford Dep. Tr. 254:23–255:3); Ex. F (Crawford Dep. Tr. Vol. II 352:19–353:11). Thus, Crawford cannot meet the third element of a claim for disability discrimination. 2. Crawford cannot establish that his position remained open or that the PUD continued to look for applicants. After Crawford was terminated, the District did not keep his position open or look for new applicants. Keeney Decl., ¶ 6. The District has not hired a meterman or apprentice meterman since Crawford’s termination. Id. Thus, he cannot meet the fourth element of his prima facie case under the WLAD. The perceived disability claim should be dismissed because as a matter of law, Crawford cannot establish all of the elements of the claim. E. The District terminated Crawford for legitimate, non-discriminatory reasons. Even if Crawford could establish a prima facie claim of retaliation, discrimination or wrongful discharge, his claims fail because he was terminated for legitimate, non-discriminatory, and non-retaliatory reasons.13 “[T]he employer’s burden is satisfied if he simply ‘explains what he has done’ or ‘produc[es] evidence of legitimate nondiscriminatory reasons.’ ” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981) (second bracket in original; citation omitted). Crawford believes that nearly everything that happened to him at work was part of a plot to orchestrate his termination. He has suggested that all of the following were adverse employment actions:14 (1) Crawford was given tests to help him assess areas of mastery and 13 Crawford’s public policy claim fails if the District can present an “overriding justification” for his termination. “[I]nsubordination is a qualifying [overriding] justification for purposes of element four of the tort of wrongful discharge in violation of public policy.” Martin, 200 Wn. App. at 367. 14 Some of the actions alleged by Crawford do not even qualify as adverse employment actions. An action is an adverse employment action if a reasonable employee would have found the action materially adverse, which means it might have dissuaded a reasonable worker from Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 19 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 20 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 areas that he needed to work on; Ex. E to Keeney Decl. (CPUD_KC 000501); Ex. A to Wall Decl. (Brock Dep. Tr. 59:24–60:9); (2) Crawford was held back in his apprenticeship to give him additional time to make progress; Ex. E to Keeney Decl. (CPUD_KC 000512); (3) the District changed the evaluation forms to make them clearer to facilitate communication between the reviewer and reviewee; Keeney Decl., ¶ 9; (4) the District offered Crawford the services of its Employee Assistance Program because it was concerned about reports that he might have been suicidal; id. ¶ 13; (5) the District put Crawford on paid administrative leave because it was not feasible to put the entire meter department on leave; id. ¶ 9; (6) upon his return from leave, the District assigned Crawford two journeymen, who were to provide daily feedback and weekly evaluations to help monitor Crawford’s progress and get him back on course; id.; (7) the District gave Crawford a Work Plan Expectations and Guidance document to set clear expectations and drive home the point that he needed to accept feedback from the journeymen; Ex. F to Keeney Decl.; and (8) the District terminated Crawford because of Crawford’s longstanding performance issues, his inability to apply classroom learning to the field, his inability to accept feedback, his defensive attitude, and his insubordination toward the journeymen. Ex. C to Keeney Decl. The uncontradicted evidence establishes that Kern made the decision to terminate Crawford. Exs. A, M and R to Wall Decl. (Brock Dep. Tr. 40:22-24); (Kern Dep. Tr. 7:16-8:13); Keeney Dep. Tr. 38:7-8). Crawford admits that he has no reason to believe that Kern or Keeney had discriminatory animus toward him. Ex. C to Wall Decl. (Crawford Dep. Tr. 199:2–200:10). His theory instead is that Leider, Kellar and Park (and “possibly” Brock) held grudges against him and sabotaged his apprenticeship. Id. This is pure speculation. But even if Crawford could establish that the journeymen or Brock held animus against him, they did not make the decision to terminate him — Kern did. Thus, to establish that the District is liable, Crawford must show that the District negligently relied on the journeymen’s making or supporting a charge of discrimination. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 20 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 21 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 performance reviews. Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d, 275 (2d Cir. 2016) (holding that “an employer who, non-negligently and in good faith, relies on a false and malign report of an employee who acted out of unlawful animus cannot [be] said to have been ‘motivated’ by the employee’s animus”). Here, the District hired an outside investigator to investigate Crawford’s claims, and the investigation did not find any evidence to substantiate Crawford’s claims of discrimination, harassment, hostile work environment or retaliation. Ex. B to Keeney Decl. Instead, the investigation revealed Park’s claim that Crawford had threatened to get other metermen fired unless Park pushed him through the apprenticeship. Id. And the investigation revealed that the metermen had significant concerns about Crawford’s ability to progress through the apprenticeship. Id. In light of the investigation finding, the District acted reasonably in relying on performance evaluations from the journeymen and terminating Crawford’s performance. The facts are undisputed that the District acted with legitimate, non-discriminatory reasons with regard to all of the events that Crawford believes were adverse employment actions. F. Crawford cannot establish pretext. To prevail on his discrimination, retaliation and wrongful discharge in violation of public policy claims, Crawford must show that the District’s legitimate, non-discriminatory reasons for the termination were pretextual. Richards v. Healthcare Res. Grp., Inc., 131 F. Supp. 3d 1063, 1071 (E.D. Wash. 2015) (holding perceived disability disparate treatment plaintiff must establish pretext); Martin, 200 Wn. App. at 367 (holding that wrongful discharge plaintiff must prove that employer’s “overriding justification” was pretextual); Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1062 (9th Cir. 2003) (holding WLAD retaliation plaintiff must establish pretext). If the employee cannot establish pretext, the employer is entitled to summary judgment. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 182, 23 P.3d 440 (2001) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973)). “An employee cannot create a pretext issue without some evidence that the employer’s reasons for termination are unworthy of belief.” Domingo v. Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 21 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 22 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 Boeing Emps.’ Credit Union, 124 Wn. App. 71, 88, 98 P.3d 1222 (2004). To establish pretext, “an employee’s subjective beliefs and assessments as to his performance are irrelevant.” Griffith v. Schnitzer Steel Indus., Inc., 128 Wn. App. 438, 447, 115 P.3d 1065 (2005) (emphasis added). The mere fact that an employee denies that he engaged in misconduct and disagrees with the termination decision does not establish pretext. Domingo, 124 Wn. App. at 88–89 (discussing Gill v. Reorganized Sch. Dist. R-6, Festus, Mo., 32 F.3d 376 (8th Cir. 1994)). “Whether [the employee] did or did not engage in the conduct . . . and whether the [employer] should have relied on the . . . investigation are ‘irrelevant because [the plaintiff’s evidence] merely questions the soundness of the [employer’s decision].’” Id. (quoting Gill, 32 F.3d at 379). In Johnson v. Express Rent & Own, Inc., 113 Wn. App. 858, 862 n.4, 56 P.3d 567 (2002), the court held that even “[i]f an employer fires an employee in a good faith but mistaken belief as to the factual basis, there is no pretext.” (Emphasis added). Employers by necessity must conduct investigations, make choices among conflicting witness statements and rely on investigation findings to make termination decisions. EEOC v. Total Sys. Sers., Inc., 221 F.3d 1171, 1176 (11th Cir. 2000) (holding that an employer is entitled to rely on its good-faith judgment between conflicting facts to terminate employment). Even if an investigation has shortcomings, the plaintiff must present some additional evidence of pretext. Edwards v. Hiland Roberts Dairy Co., 860 F.3d 1121, 1127 (8th Cir. 2017). It is well-settled that an employer may discharge an at-will employee if the employer has a good faith belief that the employee engaged in misconduct (even if the employer’s good faith belief is mistaken). Roeber v. Dowty Aerospace Yakima, 116 Wn. App. 127, 138, 64 P.3d 691 (2003). Regardless of whether the reasoning is actually true or false, a plaintiff must show that employers did not “honestly believe[ ]” the reasons for the adverse employment action. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (citation omitted). “The relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.” Rivera v. Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 22 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 23 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 City & Cty. of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004) (brackets and citation omitted). The “critical inquiry . . . is not whether the employee actually engaged in the conduct for which he was terminated, but whether the employer in good faith believed that the employee was guilty of the conduct justifying discharge.” Liles v. C.S. McCrossan, Inc., 851 F.3d 810, 821 (8th Cir. 2017) (ellipsis in original) (quoting McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 861-62 (8th Cir. 2009)). The court will not “second-guess [an employer’s] decision” if an employer “acted in good faith.” Boston v. U.S. Steel Corp., 816 F.3d 455, 465 (7th Cir. 2016) (citation omitted). The plaintiff must provide evidence to show the investigation’s conclusion was “dishonest or unreasonable.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 496 (D.C. Cir. 2008). Here, Crawford argues that he did not engage in the misconduct — according to Crawford, he did not have problems retaining information, he did not have trouble applying classroom learning to field applications, he was not receiving poor evaluations, and he was not distrustful of the journeymen (in other words, all of his co-workers are lying). Ex. C to Wall Decl. (Crawford Dep. Tr. 189:13–194:8). But Crawford’s disagreement with his employer’s findings and conclusions and Crawford’s denials that he engaged in the misconduct are irrelevant. Crawford cannot show that the District’s reasons for his termination were dishonest or unreasonable. Crawford has no evidence of pretext. G. Crawford’s failure to accommodate claim must be dismissed. “There can be no failure to accommodate a disability that does not exist but is merely perceived.” Clipse v. Commercial Driver Servs., Inc., 189 Wn. App. 776, 794 n.8, 358 P.3d 464 (2015) (citing RCW 49.60.040(7)(d)). Crawford does not contend that he has a disability that required an accommodation. His theory is that if the District perceived him as having a disability, it should have accommodated him. That theory is legally untenable under Washington law. Id. at 794. Crawford’s failure to accommodate claim must be dismissed. Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 23 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 24 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 H. Crawford’s emotional distress claims should be dismissed. To hold an employer liable for negligent or intentional infliction of emotional distress, the alleged conduct must go beyond “acceptable employee discipline or the employer’s reasonable response to a personality dispute.” Snyder v. Med. Serv. Corp. of E. Wash., 145 Wn.2d 233, 252, 35 P.3d 1158 (2001). A plaintiff cannot maintain a claim for negligent or intentional infliction of emotional distress based on the same facts underlying his discrimination claim. Chea v. Men’s Wearhouse, Inc., 85 Wn. App. 405, 413, 932 P.2d 1261 (1997) (“[A] separate claim for emotional distress is not compensable when the only factual basis for emotional distress was the discrimination claim.”); Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 866, 991 P.2d 1182 (2000) (“[T]he claim is duplicative, and the superior court properly dismissed it.”); Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989) (“[T]he fact of [a] discharge itself is not sufficient to support a claim of outrage[;] . . . mere insults and indignities, such as causing embarrassment or humiliation, will not support imposition of liability on a claim of outrage.”). Here, Crawford fails to allege any conduct that caused him emotional distress beyond his termination and the other alleged adverse employment actions. Ex. F to Wall Decl. (Crawford Dep. Tr. Vol. II 406:12–407:3). This conduct cannot support a claim for negligent or intentional infliction of emotional distress, and those claims should be dismissed. I. Crawford’s wage claim has no basis in fact and should be dismissed. Crawford has no factual basis for a wage claim. There is no admissible evidence to support a claim for non-payment of wages. This claim must be dismissed. IV. CONCLUSION For the foregoing reasons, the District respectfully requests that all claims be dismissed with prejudice. Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 24 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 25 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 DATED: December 19, 2017. STOEL RIVES LLP By: Amy Joseph Pedersen, WSBA No. 37976 760 SW Ninth Avenue, Suite 3000 Portland, OR 97205 Telephone: 503-224-3380 Facsimile: 503-220-2480 Email: amy.joseph.pedersen@stoel.com Christopher T. Wall, WSBA No. 45873 600 University Street, Suite 3600 Seattle, WA 98101 Telephone: 206-624-0900 Facsimile: 206-386-7500 Email: christopher.wall@stoel.com Attorneys for Defendant Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 25 of 26 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE - 1 Case No. 3:16-cv-5943 RJB 94263715.1 0079501-00004 CERTIFICATE OF SERVICE I hereby certify that on the 19th day of December 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all parties appearing in the matter: DATED: December 19, 2017. STOEL RIVES LLP By: s/ Christopher T. Wall Amy Joseph Pedersen, WSBA No. 37976 760 SW 9th Avenue, Suite 3000 Portland, OR 97205 Telephone: 503-224-3380 Facsimile: 503-220-2480 Email: amy.joseph.pedersen@stoel.com Christopher T. Wall, WSBA No. 45873 600 University Street, Suite 3600 Seattle, WA 98101 Telephone: 206-624-0900 Facsimile: 206-386-7500 Email: christopher.wall@stoel.com Attorneys for Defendant Case 3:16-cv-05943-RJB Document 20 Filed 12/19/17 Page 26 of 26