Schneekloth v. Ruth's Hospitality Group, Inc et al

MOTION for Summary Judgment

W.D. Wash.September 1, 2016

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 No. 15-cv-01288-TSZ UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE HEIDI A. SCHNEEKLOTH, Plaintiff, v. RUTH’S HOSPITALITY GROUP, INC., d/b/a RUTH’S CHRIS STEAK HOUSE; and RCSH OPERATIONS, INC., d/b/a RUTH’S CHRIS STEAKHOUSE, Defendants. The Honorable Thomas S. Zilly NO. 15-cv-01288-TSZ DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT NOTE FOR MOTION CALENDAR: September 23, 2016 Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 1 of 38 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 No. 15-cv-01288-TSZ TABLE OF CONTENTS Page I. INTRODUCTION .............................................................................................................. 1 II. STATEMENT OF UNDISPUTED FACTS ..................................................................... 1 A. The Employment Relationship ......................................................................... 1 B. The Chicken Incident ....................................................................................... 2 C. Gabriel Rodriguez ............................................................................................ 3 D. The Company’s Accommodations to Plaintiff ................................................. 4 E. The EEOC ........................................................................................................ 5 III. ARGUMENT AND ANALYSIS .................................................................................... 6 A. Plaintiff’s Sexually Hostile Work Environment Claim Under Title VII and the WLAD Fails as a Matter of Law ................................................... 6 1. Plaintiff’s Claim is Time-Barred under Title VII .................................... 6 2. Plaintiff Cannot Establish a Prima Facie Case of Hostile Work Environment under the WLAD ..................................................... 6 B. Plaintiff’s Disability-Based Hostile Work Environment Claim under the ADA and the WLAD Fails as a Matter of Law .......................................... 11 C. Plaintiff’s Gender Discrimination “Failure to Promote” Claim under Title VII and the WLAD Fails as a Matter of Law .......................................... 12 1. Plaintiff did not apply for a broiler position – or any other position – during her employment with Defendants. .............................. 13 2. There were no open broiler positions to which Plaintiff could have been promoted. ...................................................................... 14 3. Plaintiff admitted she was not qualified for the broiler position or any other cooking position in the kitchen other than prep cook. ........................................................................................ 15 4. The employees who received the broiler positions were demonstrably more qualified. .................................................................. 15 D. Plaintiff’s Failure to Accommodate Claim Under the ADA and the WLAD Fails as a Matter of Law ...................................................................... 16 1. Defendants did not have notice that Plaintiff had a disability that required accommodation until May 2014. ....................................... 18 2. Defendants reasonably accommodated Plaintiff after they had notice she needed an accommodation. ............................................. 21 E. Plaintiff’s Retaliation Claim Under Title VII, the ADA and the WLAD Fails as a Matter of Law ...................................................................... 22 F. Plaintiff’s Constructive Discharge Claim Fails as a Matter of Law ................. 24 G. Plaintiff’s Negligent Hiring, Supervision and/or Retention Claim Fails as a Matter of Law ................................................................................... 26 H. Plaintiff’s Negligent Infliction of Emotional Distress Claim is Precluded by the Exclusivity Provision of the Industrial Insurance Act .......... 28 Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 2 of 38 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 No. 15-cv-01288-TSZ TABLE OF AUTHORITIES Page Cases Al-Aqrabawi v. Pierce Cty., No. C07-5341RJB, 2008 WL 3875426, at *12 (W.D. Wash. Aug. 14, 2008) ............................................................................................ 13 Allstot v. Edwards, 116 Wash.App. 424, 433 (2003) ............................................................. 24 Balkenbush v. Ortho Biotech Products, L.P., 653 F.Supp.2d 1115, 1122 (E.D. Wash. 2009) ...................................................................................................................... 11 Blackburn v. Washington Dep’t of Soc. & Health Servs., No. C11-5385 RBL, 2013 WL 5373267, at *6 (W.D. Wash. Sept. 25, 2013), aff’d, 611 F.App’x 416 (9th Cir. 2015), as amended on denial of reh’g (Aug. 31, 2015) .............................. 10 Breitung v. State, Dep’t of Soc. & Health Servs., 183 Wash.App. 1017 (2014), review denied sub nom. Breitung v. State, 182 Wash.2d 1009, 343 P.3d 760 (2015) ........................................................................................................................ 27 Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th Cir. 1999) ............................................. 9 Clark v. Goodwill Indus. of Hawaii, Inc., 441 F. App’x 525, 526 (9th Cir. 2011) (citing 42 U.S.C. § 2000e-5(e) ........................................................................................... 6 Dean v. Municipality of Metropolitan Seattle-Metro, 104 Wash.2d 627, 640-41 (1985) ............................................................................................................................... 29 Ellorin v. Applied Finishing, Inc., 996 F.Supp.2d 1070, 1082 (W.D. Wash. 2014) ................................................................................................................................... 8 Francom v. Costco Wholesale Corp., 98 Wash.App. 845, 864-65, 991 P.2d 1182, 1192 (2000), as amended on reconsideration (Feb. 29, 2000) ............................... 28 Garcia v. Cintas Corp. No. 3, No. CV-12-3064-RMP, 2013 WL 1561116, at *6 (E.D. Wash. Apr. 12, 2013), aff’d sub nom. Garcia v. Cintas Corp. No. 3, 601 F. App’x 531 (9th Cir. 2015) ................................................................................. 18 Gay v. Waiters’ & Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 547–48 (9th Cir. 1982 (citing Chavez v. Tempe Union High School Dist., supra, 565 F.2d 1087 (9th Cir. 1977) ............................................................................... 14 Goodman v. Boeing Co., 127 Wn.2d 401, 408, 899 P.2d 1265 (1995) Haubry v. Snow, 106 Wash.App. 666, 679, 31 P.3d 1186, 1193 (2001) ................................ 27 Hedenburg v. Aramark Am. Food Servs., Inc., 476 F.Supp.2d 1199, 1208 (W.D. Wash. 2007) (citing Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998) ............................................................................................................................ 6 Hotchkiss v. CSK Auto Inc., 918 F.Supp.2d 1108, 1125 (E.D. Wash. 2013) (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1121 (9th Cir. 2000) Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 3 of 38 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 No. 15-cv-01288-TSZ (adopting Title VII analysis for the ADA), overruled on other grounds, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002) ......................................................... 22 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 368, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) ........................................................................................................... 13 Kees v. Wallenstein, 973 F.Supp. 1191, 1196 (W.D. Wash. 1997), aff’d, 161 F.3d 13 (9th Cir. 1998), and aff’d, 161 F.3d 1196 (9th Cir. 1998) (citing 42 U.S.C. § 12111(9)(B)) ................................................................................................. 21 Kennedy v. Applause, Inc., 90 F.3d 1477, 1480–82 (9th Cir. 1996) ...................................... 22 La Lone v. Smith, 39 Wash.2d 167, 172, 234 P.2d 893 (1951) .............................................. 27 Larmanger v. Kaiser Found. Health Plan of the Nw., 895 F.Supp.2d 1033 (D. Or. 2012), aff’d, 585 F. App’x 578 (9th Cir. 2014) ......................................................... 23 MacDonald v. Korum Ford, 80 Wash.App. 877, 886, 912 P.2d 1052, 1058 (1996) ................................................................................................................................. 9 Matthiesen v. Autozoners, LLC, No. 2:15-CV-0080-TOR, 2016 WL 1559580, at *4 (E.D. Wash. Apr. 18, 2016) (quoting Washington v. Boeing Co., 105 Wash.App. 1, 10 (2000) ..................................................................................................... 6 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) ............................................ 22 McKinney v. Boyd Gaming Corp., 12 F. App’x 599, 600 (9th Cir. 2001) ............................. 13 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002) .......................................... 6 Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 673 (9th Cir. 1988) ................................... 13 Robertson v. City of Seattle, 122 Wash.App. 1056 (2004) ..................................................... 25 Rothwell v. Nine Mile Falls Sch. Dist., 295 P.3d 328, 332-33 (2013) ................................... 28 Rothwell v. Nine Mile Falls Sch. Dist., 295 P.3d 328, 332-33 (2013) ................................... 28 Rucshner v. ADT, Sec. Sys., Inc., 149 Wash.App. 665, 682 (2009) ....................................... 27 Steenmeyer v. Boeing Co., 92 F.Supp.3d 1024, 1030 (W.D. Wash. 2015) ............................ 17 Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065-66 (9th Cir. 2003), as amended (Jan. 6, 2004) ..................................................................................................... 22 Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 421–22 (9th Cir. 2013) ............................................................................................................................ 8 Williams v. Federal Express Corp., No. C12-0348JLR, 2013 WL 2256227, at *4 (W.D. Wash. May 22, 2013) ....................................................................................... 18 Woods v. Washington, 475 F.App’x 111, 112 (9th Cir. 2012) ............................................... 23 Yartzoff v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 1987) ...................................................... 13 Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 4 of 38 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 No. 15-cv-01288-TSZ Rules RCW 49.60.040(7)(d)(ii) ........................................................................................................ 18 Statutes 42 U.S.C. § 12111(9)(B) ........................................................................................................ 21 42 U.S.C. § 2000e–5(e) ............................................................................................................ 6 Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 5 of 38 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 - 1 No. 15-cv-01288-TSZ I. INTRODUCTION After conducting a thorough investigation into the allegations Plaintiff made in her EEOC charge (the same substantive claims she makes here), the administrative agency did something unusual. In addition to sending the standard form Notice of Rights letter, the EEOC issued a stinging rebuke of Plaintiff’s claims. . . . even if the pushing incident [with Santoyo] could be construed as conduct you were subjected to because of your sex, Respondent took appropriate action in response to your complaint . . . The evidence supports that . . . Respondent offered you reasonable accommodation for your medical condition. . . . On July 18, 2014, your medical provider provided Respondent with a note transitioning you to light duty. Respondent responded by offering you the opportunity to return to work in a light duty capacity. . . . No evidence was provided to support that Respondent subjected you to any adverse treatment, which is a necessary element to establish an unlawful retaliation under the laws the EEOC enforces. . . . Your charge will be dismissed . . . because there is insufficient evidence that the laws enforced by the Commission have been violated. Undeterred, Plaintiff filed this lawsuit alleging violations of Title VII, the Washington Law Against Discrimination (“WLAD”) and the ADA, as well as state law claims for negligent infliction of emotional distress and negligent hire/retention/supervision. (Dkt. #1 at 14-15, 21-28). After extensive and costly discovery, the fact remains that Plaintiff cannot establish a prima facie case with respect to any of her numerous claims. Therefore, Defendants Ruth’s Chris Hospitality Group, Inc., and RCSH Operations, Inc. (collectively, “Ruth’s Chris” or “Defendants”) respectfully move that all claims be dismissed, with prejudice, and at her cost. II. STATEMENT OF UNDISPUTED FACTS A. The Employment Relationship Plaintiff was hired as a prep cook at Defendants’ Bellevue, Washington restaurant (“Bellevue”) in April of 2013 and remained at that location until she stopped reporting for work on May 15, 2014. Ex. A, p. 105:7-11; 118:9-12.1 During her tenure, Plaintiff moved from prep 1 All exhibits are attached to the Declaration of Laurie Riley, submitted herewith. Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 6 of 38 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 No. 15-cv-01288-TSZ cook 3 to prep cook 1 because she had culinary school training and baking experience. Ex. B, p. 38:1-9. Other cooking positions above the prep cook include: (1) Pantry Cook; (2) Broiler; (3) Sous Chef; and (4) Executive Chef. Ex. B, p. 15; Ex. C, p. 21, 22, 69. Plaintiff received training on Defendants’ human resources policies, open door policy, anti-harassment/discrimination policy, and no retaliation policy by attending both orientation and human resources training, and receiving Defendants’ handbook. Ex. A, p. 120, 153-154. Plaintiff testified that she knew how to lodge a complaint and how to call Human Resources (“HR”) with any issues. Ex. A, p. 153-156. Importantly, Plaintiff was aware that Defendants’ anti-harassment policy meant she was supposed to report any harassment she experienced or saw to her General Manager or to HR. Ex. A, p. 159-160. Scott Fitch was the General Manager of Defendants’ Bellevue restaurant. Ex. B, p. 10:9-12; 265:12-16. Brandon Bretz was the Executive Chef at Bellevue from July of 2012 to June of 2013. Ex. B, p. 18:1-7. In November of 2013, Wayne Weber became the Executive Chef at Bellevue, replacing Bretz. Ex. B, p. 18:8-10. The Bellevue restaurant has two kitchens; one on the lower floor for preparing food; and one upstairs for actually cooking the food served to guests. Ex. B, p. 27-28. B. The Chicken Incident On September 16, 2013, Plaintiff got into a dispute with her fellow prep cook, Arturo Santoyo, over how to prepare a chicken. Santoyo had worked at Bellevue for more than a year and it was his job – not Plaintiff’s job – to prep the chicken. Ex. A, p. 201; Ex. B, p. 28:14-18. According to the Plaintiff, she squatted down in front of the oven to retrieve the chicken when Santoyo allegedly pushed her so he could get the chicken, causing her to land on her right elbow and hit her head. Ex. A, p. 199-200. Plaintiff testified that she had no problems with Santoyo prior to the chicken incident. Ex. A, p. 195. Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 7 of 38 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 No. 15-cv-01288-TSZ There were no witnesses to the chicken incident; however, Defendants immediately stepped in to de-escalate the situation and conduct an investigation. Ex. A, p. 200; Ex. B, p. 112. Santoyo was sent home without pay. Ex. B, p. 108-109. In addition, Defendants moved Santoyo to the upstairs kitchen away from Plaintiff, and he was never scheduled to work with Plaintiff in the downstairs kitchen again. Ex. A, p. 220-221. In fact, Defendants adjusted the schedules so Plaintiff and Santoyo would not have to see each other at work. Ex. A, p. 222. Plaintiff elected to finish her shift at work and declined medical attention. In fact, Plaintiff did not seek any medical attention until 15 days later, and that visit was due to alleged anxiety attacks. Ex. A, p. 174-176; Ex. D. Plaintiff admitted that there was nothing sexual or gender-related connected to the chicken incident with Santoyo. Ex. A, p. 193-194. Despite the adjusted work schedule and the fact that Plaintiff had not made any other complaint about Santoyo, she sought and obtained an order of protection which ultimately resulted in Santoyo not being able to work at the Bellevue restaurant. Defendants consequently terminated Santoyo in October of 2013. Ex. B, p. 197-198. C. Gabriel Rodriguez Plaintiff claims that another fellow prep cook, Gabriel Rodriguez, made “sexual advances” towards her, which she defined as: (a) telling Plaintiff he liked how she looked; and (b) suggesting they get their kids together to hang out. Ex. A, p. 237-238. Rodriguez was employed as a prep cook at Defendants’ Bellevue restaurant from June of 2011 until June 2014. Ex. B, p. 252. According to the Plaintiff, when she told Bretz about these so-called “sexual advances,” he changed the work schedules so that Rodriguez only worked on Plaintiff’s days off. Ex. A, p. 238. Plaintiff also claims that Rodriguez shoved his hands into her pants pocket to get keys and shoved the keys into her private area. The incident happened before June of 2013 because Plaintiff testified that she reported it to Bretz, who left the restaurant in June of 2013. Ex. A, Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 8 of 38 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 No. 15-cv-01288-TSZ p. 234. However, Plaintiff admitted that she only reported that Rodriguez grabbed the keys from her pocket and never told Bretz that Rodriguez touched her private area. Ex. A, p. 239- 240. After Bretz left, Rodriguez and Plaintiff were scheduled to work during the same shifts again because, as Plaintiff admitted, no one was aware of their previous issues. Ex. A, p. 234. In late September of 2013, when Plaintiff was opening the restaurant in the morning, she saw Rodriguez, who did not say anything, smiled, and ran out of the restaurant. Plaintiff claimed to be scared by this incident. Ex. A, p. 235-236. Plaintiff mentioned this incident to Fitch in October of 2013. At this time, Plaintiff also mentioned that Rodriguez had grabbed for her keys some several months before. Plaintiff admitted that, as with Bretz, she did not tell Fitch that Rodriguez touched her private area, only that Rodriguez grabbed the keys from her pocket. Ex. A, p. 234-235, 240-241. After learning of these incidents (one of which had happened months before), Fitch made sure that Rodriguez was never scheduled to work with Plaintiff again and that their schedules did not overlap. Ex. A, p. 248-249. In fact, Defendants even changed the locks to the restaurant because Plaintiff alleged that Rodriguez had a set of keys. Ex. A, p. 249. D. The Company’s Accommodations to Plaintiff Plaintiff admitted that the first time she provided any documentation regarding any work restrictions was on May 7, 2014, and that she gave the doctor’s note to Fitch or Weber. Ex. A, p. 180-181, 258, 261. Plaintiff admitted that no doctor ever recommended she have a light duty position before May of 2014. Ex. A, p. 180-181. Plaintiff does not recall any doctor placing any restrictions on her work before May of 2014. Ex. A, p. 182. Plaintiff could not identify any time before May 7, 2014, that she even asked for any accommodation. Ex. A, p. 261; Ex. B, p. 39. Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 9 of 38 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 No. 15-cv-01288-TSZ After notifying Weber that she needed help, Plaintiff admitted that Weber may have helped Plaintiff complete her prep work. Ex. A, p. 259-260; Ex. C, p. 58-60. Weber also spoke to Fitch and accommodated Plaintiff by redistributing some of the prep cook tasks that aggravated her injury. Ex. C, p. 60. Plaintiff admitted that Fitch also helped her once she asked for assistance in May of 2014. Ex. A, p. 275-276. After Fitch received notice that Plaintiff had difficulty chopping, he accommodated her by assigning tasks other than chopping to avoid aggravating the injury. Ex. B, p. 159. Plaintiff stopped reporting to work on May 15, 2014, eight days after she first brought in documentation about work restrictions and said she needed an accommodation. Ex. A, p. 184-185. Plaintiff testified that she was released to work a light duty hostess position in July of 2014, and recalls receiving a letter from Fitch telling her there was an open hostess position for her. She refused this position. Ex. A, p. 187-188. Plaintiff testified that she was released again to a hostess position in May of 2015 and December of 2015, has continued to receive offers by Ruth’s Chris to be a hostess, yet she has still failed to return to work for Defendants. Ex. A, p. 189-192. E. The EEOC In 2014, a year after the chicken incident, Plaintiff filed a charge with the EEOC alleging sexual harassment, sex discrimination, failure to reasonably accommodate a disability and unlawful retaliation. The EEOC conducted a thorough investigation and, as discussed above, found both that Plaintiff was not subjected to any unlawful behavior and that the company acted reasonably towards her at all times. Ex. E.2 2 Additional undisputed facts are set forth in the Argument and Analysis section, infra. Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 10 of 38 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 No. 15-cv-01288-TSZ III. ARGUMENT AND ANALYSIS A. Plaintiff’s Sexually Hostile Work Environment Claim Under Title VII and the WLAD Fails as a Matter of Law 1. Plaintiff’s Claim is Time-Barred under Title VII Plaintiff’s sexually hostile work environment claim is time-barred under Title VII given that the last alleged act of “harassment” occurred (at best) in October of 2013 (when she was allegedly frightened just by seeing Rodriguez), and Plaintiff failed to file her charge until September 9, 2014, more than 300 days from the last act of harassment. Clark v. Goodwill Indus. of Hawaii, Inc., 441 F. App’x 525, 526 (9th Cir. 2011) (citing 42 U.S.C. § 2000e–5(e); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002). 2. Plaintiff Cannot Establish a Prima Facie Case of Hostile Work Environment under the WLAD A prima facie case of a hostile work environment requires Plaintiff to show: (1) that she was subjected to verbal or physical conduct of a sexual nature; (2) that the conduct was unwelcome; and (3) that the harassment was sufficiently severe or pervasive to alter the terms or conditions of employment and create an abusive work environment. Hedenburg v. Aramark Am. Food Servs., Inc., 476 F.Supp.2d 1199, 1208 (W.D. Wash. 2007) (citing Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998). In determining whether conduct was sufficiently severe or pervasive to violate Title VII or the WLAD, the Court looks at “all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. “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.” Matthiesen v. Autozoners, LLC, No. 2:15- CV-0080-TOR, 2016 WL 1559580, at *4 (E.D. Wash. Apr. 18, 2016) (quoting Washington v. Boeing Co., 105 Wash.App. 1, 10 (2000)). Moreover, the “working environment must both Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 11 of 38 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 No. 15-cv-01288-TSZ subjectively and objectively be perceived as abusive.” Id. (quoting Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000)). a. Santoyo’s “harassment” was not gender or sex based. Plaintiff’s claim of sexually hostile work environment as to Santoyo’s conduct fails because the harassment in which Plaintiff accuses Santoyo of engaging was not sexual – or even gender – related. Plaintiff testified that the chicken incident had nothing to do with her gender or sex, and that she had never previously had any issues with Santoyo. Thus, this allegation cannot support a claim for a sexually hostile work environment. See Hedenburg, 476 F.Supp. at 1199. b. Rodriguez’s alleged harassment was not severe or pervasive enough to alter the terms and conditions of Plaintiff’s employment. Plaintiff alleges that Rodriguez: (1) made “sexual advances” to her by as telling her he liked how she looked and suggesting they get their kids together to hang out; (2) sometime before June of 2013 he allegedly touched her “private area” on one occasion while grabbing for keys in her pocket; and (3) in approximately September of 2013, Rodriguez allegedly scared her by his mere presence when they were alone in the restaurant on one occasion. Plaintiff cannot reasonably maintain that the isolated incidents involving Rodriguez alleged in this case gave rise to a fear that sexual harassment had become a permanent feature of the employment relationship. Rodriguez’s “advances” as described by Plaintiff were, at most, merely offensive utterances. Hedenburg, 476 F.Supp. at 1208. Further, Rodriguez’s comment suggesting they get their kids together to hang out is objectively neither gender based nor sexual in nature. Similarly, Plaintiff’s allegation that, on one occasion she was frightened by being alone in the building with Rodriguez, cannot reasonably lead to a fear that sexual harassment had become a permanent feature of her employment relationship with Defendants. Plaintiff does not allege that Rodriguez engaged in any comments or conduct related to her sex or gender during this incident. Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 12 of 38 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 No. 15-cv-01288-TSZ In granting defendant’s summary judgment motion in Hedenburg, the court cited Ninth Circuit authority in rejecting a hostile work environment claim where a supervisor called female employees “castrating bitches,” “Madonnas,” or “Regina” on several occasions in front of plaintiff because it was neither severe nor pervasive. Id. at 1208-1209. See also, Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 421–22 (9th Cir. 2013) (coworker’s offensive sexual conduct toward plaintiff was not sufficiently severe or pervasive where plaintiff only went to coworker’s workplace once a week for three months and coworker only made offensive sexual remarks on about four occasions); Ellorin v. Applied Finishing, Inc., 996 F.Supp.2d 1070, 1082 (W.D. Wash. 2014) (allegations that an employee who asked a female employee on a date for drinks, blew her kisses on more than one occasion, told her that she smelled “so good,” would notice what she was wearing, once blew air on the back of her neck while sniffing her, and told the female employee one night as she left work to “not forget to scream his name loudly that night” are not severe or pervasive). Rodriguez’s “advances,” which pale in comparison to the comments cited above, cannot be considered pervasive or severe enough to unreasonably interfere with Plaintiff’s employment. Plaintiff’s allegation that Rodriguez touched her “private area” once while grabbing for keys in Plaintiff’s pocket, is also insufficient to support her claim. In Brooks, the employee alleged that a fellow employee pushed her up against a chair, touched her stomach and then touched her breast under her sweater. Brooks, 229 F.3d at 921-922. The employee “claim[ed] the incident pervaded her work environment to such a degree that she required psychological help and even then was unable to successfully return to her job.” Brooks, 229 F.3d at 924. The court found that although the employee alleged sufficient facts to support the subjective portion of her hostile work environment claim, her apprehension was not objectively reasonable. Id. Because only the employer can change the terms and conditions of employment, an isolated incident of harassment by a co-worker will rarely (if ever) give rise to a reasonable fear that sexual harassment has become a permanent feature of the employment relationship. Id. “By Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 13 of 38 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 No. 15-cv-01288-TSZ hypothesis, the employer will have had no advance notice and therefore cannot have sanctioned the harassment beforehand.” Id. “In such circumstances, it becomes difficult to say that a reasonable victim would feel that the terms and conditions of her employment have changed as a result of the misconduct.” Id. Such is precisely the case here. Even if this court believes that Rodriguez touched Plaintiff’s “private area” when grabbing for the keys, the incident was isolated. And, given that Rodriguez was her coworker, it is not reasonable for Plaintiff to believe that the terms and conditions of her employment changed as a result of this isolated and unsanctioned misconduct. MacDonald v. Korum Ford, 80 Wash.App. 877, 886, 912 P.2d 1052, 1058 (1996) (a single isolated incident where an employee kissed a female employee on New Year’s Eve, although offensive and inappropriate, could not support a hostile environment claim. c. All of Plaintiff’s allegations of harassment known by management-level employees were immediately addressed with corrective and preventative measures. An employer may be found liable in a hostile work environment case involving harassment by coworkers about which management-level employees “knew or should have known” but did not take adequate steps to address. Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th Cir. 1999). Defendants took adequate measures to address all known harassment reported by Plaintiff. As an initial matter, Plaintiff admitted she was aware of and was trained on human resources policies, including training on Defendants’ open door policy, anti- harassment/discrimination policy, and no retaliation policy. Thus, Defendants had in place reasonable mechanism for prevention and correction. Further, Defendants promptly corrected any harassment of which they were made aware. Although not sexual or gender-related, Defendants took immediate and appropriate action as a result of the chicken incident: 1) Santoyo was moved to the upstairs kitchen away from Plaintiff; 2) they were scheduled to Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 14 of 38 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 No. 15-cv-01288-TSZ work different shifts, and 3); ultimately Santoyo’s employment was terminated as a result of the order of protection obtained by Plaintiff. When Plaintiff told Bretz about Rodriguez’s “sexual advances” and that Rodriguez had tried to grab her keys (not mentioning anything sexual about the encounter), Bretz changed Plaintiff and Rodriguez’s schedules so Rodriguez only worked on Plaintiff’s days off. At some point when Bretz – the only person who knew about the key incident - stopped working for Defendants, Rodriguez and Plaintiff were again scheduled to work at the same time on occasion. Plaintiff did not mention the key incident to Fitch until after October 2013, when she reported that she was frightened about being in the restaurant alone with Rodriguez. As with Bretz, Plaintiff did not tell Fitch that Rodriguez touched her private area, only that Rodriguez grabbed the keys from her pocket. However, when informed by Plaintiff that she was scared to be alone with Rodriguez and about the key incident which happened months prior, Fitch immediately changed Plaintiff and Rodriguez’s schedules so they would not have to work together. Defendants also changed the restaurant locks because Plaintiff alleged Rodriguez had a set of keys. Thus, Defendants clearly acted immediately and appropriately by separating Rodriguez from Plaintiff as soon as Plaintiff’s concerns were reported. Importantly, regarding Plaintiff’s “groping” allegation, Defendants did not know about this allegation until Plaintiff filed this lawsuit. Plaintiff admitted that she chose not to report this alleged touching despite having reported to two different managers, six months apart, that Rodriguez took keys from her. As Defendants did not know about any allegation of groping until the filing of this lawsuit, it cannot be found liable for that conduct. See Burrell, 170 F.3d at 955. Thus, because any conduct that was known to management-level employees for Defendants was promptly investigated and corrected immediately, Plaintiff was not subjected to an objectively hostile work environment. See Blackburn v. Washington Dep’t of Soc. & Health Servs., No. C11-5385 RBL, 2013 WL 5373267, at *6 (W.D. Wash. Sept. 25, 2013), aff’d, 611 F.App’x 416 (9th Cir. 2015), as amended on denial of reh’g (Aug. 31, 2015) (holding Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 15 of 38 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 No. 15-cv-01288-TSZ that although the coworker’s remarks may have been offensive, possibly humiliating, and certainly distasteful, the conduct was promptly investigated and remedied and thus plaintiff was not subjected to an objectively hostile work environment). Accordingly, Plaintiff’s hostile work environment claim must be dismissed. B. Plaintiff’s Disability-Based Hostile Work Environment Claim under the ADA and the WLAD Fails as a Matter of Law A plaintiff in a disability based hostile work environment case must prove: (1) that he or she was disabled within the meaning of the antidiscrimination statute; (2) that the harassment was unwelcome; (3) that it was because of the disability; (4) that it was so severe and pervasive to affect the terms or conditions of employment; and (5) that it was imputable to the employer. Balkenbush v. Ortho Biotech Products, L.P., 653 F.Supp.2d 1115, 1122 (E.D. Wash. 2009). Title VII and the WLAD are governed by the same analysis. Id. Plaintiff has no evidence of any severe or pervasive harassment based on her alleged disability. Plaintiff admitted that no manager or employee of Defendants ever made fun of her arm, her mental state, or any other alleged disability. Ex. A, p. 283-284. To the extent Plaintiff argues that Defendants “harassed” her based on her disability by making her work more after her injury, that allegation is completely baseless. Plaintiff’s alleged “increased workload” after the chicken incident and arm injury in September of 2013 came during the holiday season (primarily November and December), which Plaintiff knew was Defendants’ busiest times. Ex. A, p. 47, 111. Other employees were also given longer hours during the holiday season in 2013. Ex. A, p. 47, 143-144. In fact, in contradiction with the aforementioned allegation, Plaintiff simultaneously testified that she was given fewer hours after the chicken incident and arm injury. Ex. A, p. 222. Thus, allegedly increasing Plaintiff’s hours during its busiest months is not sufficient to support a hostile work environment claim. See, e.g., Balkenbush, 653 F.Supp.2d at 1126-27 (granting summary judgment for employer in holding that a multi-hour interrogation which the Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 16 of 38 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 No. 15-cv-01288-TSZ plaintiff described as intimidating and abusive was not severe and pervasive under the circumstances, as plaintiff was under investigation and would likely feel intimidated). Further, even if she could establish the requisite level of severity or pervasiveness, which she cannot, Plaintiff cannot establish any basis for imputing it to Defendants. Plaintiff never reported any disability-based harassment, despite her knowledge of the procedure for reporting alleged acts of harassment or discrimination. Thus, she cannot establish any basis for holding Defendants liable. See Burrell, 170 F.3d at 955. Plaintiff’s disability-based hostile work environment claim must be dismissed. C. Plaintiff’s Gender Discrimination “Failure to Promote” Claim under Title VII and the WLAD Fails as a Matter of Law Plaintiff claims that she was discriminated against based on her gender because Defendants did not promote her to the broiler position. Ex. A, p. 264. Plaintiff conceded she had no work experience as a broiler and that she understood the broiler position had the most responsibilities other than sous chef and chef. Ex. A, p. 115-116. However, not only was she admittedly unqualified for the broiler position, she did not even apply for or take the necessary steps toward receiving this promotion. Ex. A, p. 117, 162. Further, there was not an open broiler position for which Plaintiff would have been able to apply because of her work schedule. Ex. A, p. 114-115; Ex. C, p. 86-90. Title VII and the WLAD both employ a burden shifting scheme in order to determine whether gender discrimination took place in an employee’s non-promotion. Hedenburg, 476 F.Supp.2d at 1205-06. For Plaintiff to prove her prima facie case, she must prove: (1) she is a woman; (2) she applied and was qualified for an open broiler position for which Defendants were seeking applicants; (3) despite her qualifications, she was rejected; and (4) after her rejection, the position remained open and Defendants continued to seek applicants from persons of Plaintiff’s qualifications. Hedenburg, 476 F.Supp. at 1206 (citing McDonnell Douglas Corp. Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 17 of 38 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 No. 15-cv-01288-TSZ v. Green, 411 U.S. 792, 802 (1973). The first element is the only element Plaintiff is able to prove in the prima facie case – Plaintiff is a woman. 1. Plaintiff did not apply for a broiler position – or any other position – during her employment with Defendants. Although Plaintiff “showed interest” in being promoted to the broiler position, she never applied for the position or took the necessary steps in training to become eligible for the broiler position. Plaintiff admitted she never even went so far as to determine whether a broiler position was open at the restaurant during her employment. Ex. A, p. 119-120. Plaintiff testified that she did not apply for or take any necessary steps toward receiving the promotion (such as becoming certified on the SMAC cards). Ex. A, p. 124-125, 333. Plaintiff cannot maintain a failure to promote claim given that she did not apply for the broiler position. See Al-Aqrabawi v. Pierce Cty., No. C07-5341RJB, 2008 WL 3875426, at *12 (W.D. Wash. Aug. 14, 2008); Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 673 (9th Cir. 1988); McKinney v. Boyd Gaming Corp., 12 F. App’x 599, 600 (9th Cir. 2001). A non-applicant, like Plaintiff, suffers “an invasion of a legally protected interest,” under Title VII if “[she] would have applied for the job had it not been for [the employer’s discriminatory] practices.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 368, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). To prevail on the merits as a nonapplicant, Plaintiff must show that she was “discouraged from applying” rather than that she “simply failed to do so.” Yartzoff v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 1987). Plaintiff’s testimony that she allegedly heard Weber say (or was told by another employee that Weber said) to another employee, not Plaintiff, that “there would never be a woman on the broiler” cannot be equated with discouraging her to apply for the broiler position, let alone any other promotion in the kitchen for which she could have applied. Plaintiff knew that she would not be able to go to the broiler position immediately from prep cook, but rather needed to work her way up becoming proficient with each station, the next position being the pantry position. Ex. A, p. 325. Plaintiff was aware that Victoria Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 18 of 38 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 No. 15-cv-01288-TSZ Newland, a female, was promoted by Weber from prep cook to pantry cook during Plaintiff’s employment. Ex. A, p. 122. Yet, Plaintiff took no steps to become qualified for or be promoted to the panty position. Further, Plaintiff cannot identify any woman who applied for any kitchen position with Defendants and did not get the position. Ex. A, p. 150. Thus, to base Plaintiff’s failure to apply for the broiler position or any other position on a third-hand comment she heard from the chef in the kitchen, about which she never complained to HR, is not sufficient to support the argument that Defendants discouraged her from applying, particularly considering Plaintiff knew Weber promoted a female during her employment. Yartzoff, 809 F.2d at 1374. 2. There were no open broiler positions to which Plaintiff could have been promoted. Further, there were no broiler positions open during the days Plaintiff was available to work, and thus Plaintiff is not able to meet the “open job” requirement of the prima facie case. Gay v. Waiters’ & Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 547–48 (9th Cir. 1982 (citing Chavez v. Tempe Union High School Dist., supra, 565 F.2d 1087 (9th Cir. 1977). “The function of the McDonnell Douglas prima facie case is to eliminate the two most common reasons why an applicant may be rejected: an absolute or relative lack of qualifications, or lack of an open position.” Id. (citing Teamsters, supra, 431 U.S. at 358 n. 44, 97 S.Ct. at 1866 n. 44). Thus, if the court “were to permit a prima facie case to be established solely upon proof that jobs, in general, were available within some unspecified time from the unspecified date at which a plaintiff applied for a position, we would be permitting a plaintiff to raise an inference of discrimination where he or she has failed to disprove one of the two common and neutral reasons for a rejection.” Id. at 548. There was not an open broiler position with Defendants to which Plaintiff was available to be promoted. Ex. C, p. 86-87. Plaintiff told Defendants that she was not able to work in the evenings or on weekends. Ex. A, p. 144-146. Klum was hired in July 2013 to work as a broiler Monday through Thursday, the days Plaintiff was available to work. But, Plaintiff admitted she Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 19 of 38 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 No. 15-cv-01288-TSZ was not qualified for this position at that time. There was not a broiler position open during the day from July 2013 until Plaintiff stopped coming to work. Thus, any potentially available broiler position open between August 2013 and May 2014 where she could have, for arguments sake, become qualified for the broiler position would have been on the weekends, when Plaintiff was unavailable to work. 3. Plaintiff admitted she was not qualified for the broiler position or any other cooking position in the kitchen other than prep cook. Importantly, Plaintiff admitted that she was not qualified for the position of broiler or, to the extent she claims she wanted to be promoted to any other positions in the kitchen, any other position other than her then-current position of prep cook. Plaintiff admitted she did not study SMAC cards to try to become certified on any other position, despite knowing that she could take the SMAC cards for a position, study them, and then become certified on that position by a coach. Ex. A, p. 124-25, 128-29, 333. Plaintiff also admitted that she knew she had to have knowledge of the SMAC cards before she could be given practical training on another position. Id. As Plaintiff has conceded that she was not qualified for the position, she cannot meet this element of the prima facie case. See Gay, 694 F.2d at 548; Pejic, 840 F.2d 673. 4. The employees who received the broiler positions were demonstrably more qualified. In contrast, the employees who received the broiler position (and the only male employees she specifically alleges received a promotion or position instead of her),Jonathan Klum (“Klum”) and Steven Conklin (“Conklin”), were more qualified than Plaintiff for the position. Ex. A, p. 128, 270-272. Plaintiff admitted she knew Conklin had previous experience as a cook at a steakhouse (over 18 years, including many of those as a broiler cook), and admitted that she knew nothing about Klum’s qualifications for the position, who also had previous experience as a lead cook at two other steakhouses. Id.; Ex. F; Ex. G. In contrast, Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 20 of 38 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 No. 15-cv-01288-TSZ Plaintiff’s first job in a kitchen position was with Defendants (where she was employed for a little over a year), and she had no work experience in the broiler position. Ex. A, p. 89, 96. Plaintiff was not promoted to broiler in part because her absolute lack of qualifications, particularly in relation to Klum and Conklin. See Gay, 694 F.2d at 548. Thus, Plaintiff cannot prevail on a claim for failure to promote to a position for which: (1) she did not apply; (2) she was unavailable to hold; (3) she was unqualified; and (4) those hired were demonstrably more qualified. This claim must be dismissed. D. Plaintiff’s Failure to Accommodate Claim Under the ADA and the WLAD Fails as a Matter of Law Plaintiff alleges she sustained an arm injury and developed Post Traumatic Stress Disorder (PTSD) as a result of the chicken incident and from becoming scared being alone in the restaurant with Rodriguez. Ex. A, p. 328-329. Regarding the failure to accommodate claim, Plaintiff testified as follows:  She knew Defendants had an ADA policy for accommodations and that she needed to let a manager or HR know immediately if she had a disability and needed an accommodation to do her job. Ex. A, p. 159-160.  She never reported any issue with any accommodation to HR. Ex. A, p. 279.  She was never disciplined by Weber for working too slowly. Ex. A, p. 170-171.  She brought Fitch a medical invoice in late 2013 to get reimbursement for what she claimed was a workers’ compensation injury, but the statement she presented did not say to what it pertained or to what it related. Ex. A, p. 175-76.  She never told Weber or gave him any medical documentation about any work restrictions in November or December of 2013. Ex. A, p. 173.  She did not even attempt to fill out a workers compensation form for almost five months after the chicken incident and does not know why she waited. Ex. A, p. 281.  The first time she brought in any documentation regarding any work restrictions was May 7, 2014, and she gave that documentation to Fitch or Weber. Ex. A, p. 180-81, 258, 261.  The May 2014 note from her doctor only stated that Plaintiff had a temporary restriction regarding cutting or lifting more than ten pounds with her right hand and/or elbow. Ex. 10 to Ex. A.  She did not know if she asked for any accommodations before she turned in medical documentation in May of 2014. Ex. A, p. 261; Ex. B, p. 39. Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 21 of 38 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 No. 15-cv-01288-TSZ  May 2014 was the first time Plaintiff brought in a doctor’s note saying she needed light duty. Plaintiff also testified that no doctor ever recommended she have a light duty position before May 2014. Ex. A, p. 180-181; Ex. 10 to Ex. A.  She does not recall any doctor placing any restrictions on her work before May of 2014. Ex. A, p. 182.  She admitted that after finally telling Weber in May of 2014 that she needed help, Weber may have helped Plaintiff complete her prep work. Ex. A, p. 260; Ex. C, p. 58-60.  After Weber received notice in May of 2014 that Plaintiff had difficulty chopping, Weber did speak to Fitch and they redistributed some of her tasks. Ex. A, p. 275- 76; Ex. B, p. 159; Ex. C, p. 58-60.  She stopped reporting to work on May 15, 2014, eight days after she first brought in documentation about work restrictions. Ex. A, p. 184-85.  She only missed, at most, one day of work between the chicken incident where she sustained an arm injury, and May 15, 2014, when she stopped going to work. Ex. A, p. 231.  She could go two or three days at work without seeing a sous chef or a chef. Ex. A, p. 140-41, 143. A prima facie case for failure to accommodate under both the ADA and WLAD requires a plaintiff to show that: (1) she is disabled; (2) she is qualified for the job in question and capable of performing it with reasonable accommodation; (3) the employer had notice of her disability; and (4) the employer failed to reasonably accommodate her disability. Steenmeyer v. Boeing Co., 92 F.Supp.3d 1024, 1030 (W.D. Wash. 2015) (citing McDaniels v. Group Health Co-op., 57 F.Supp.3d 1300, 1314–15, No. C13–1689–JLR, 2014 WL 5471991, *11 (W.D. Wash. Oct. 29, 2014) (citing Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012); Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088–89 (9th Cir. 2002). An employer has a duty to accommodate under the ADA after an employee identifies a disability that may require accommodation. Id. (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir. 2000), vacated in part on other grounds by 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed. 2d 589 (2002)). Similarly, the duty to accommodate a potential aggravation under the WLAD arises only when the employee has notified the employer of the existence of an impairment and has produced medical documentation “establish[ing] a reasonable likelihood that engaging in job functions without an accommodation would aggravate the impairment to Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 22 of 38 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 No. 15-cv-01288-TSZ the extent that it would create a substantially limiting effect.” Garcia v. Cintas Corp. No. 3, No. CV-12-3064-RMP, 2013 WL 1561116, at *6 (E.D. Wash. Apr. 12, 2013), aff’d sub nom. Garcia v. Cintas Corp. No. 3, 601 F. App’x 531 (9th Cir. 2015) (quoting Johnson v. Chevron U.S.A., Inc., 159 Wash.App. 18, 28–30, 244 P.3d 438 (2010); RCW 49.60.040(7)(d)(ii)). In granting summary judgment for the employer, the Court found that “it is not enough for the employer to simply know that the employee was injured.” Williams v. Federal Express Corp., No. C12-0348JLR, 2013 WL 2256227, at *4 (W.D. Wash. May 22, 2013). “The employee bears the burden of giving the employer notice of [her] disability.” Goodman v. Boeing Co., 127 Wn.2d 401, 408, 899 P.2d 1265 (1995) (citing Hume v. American Disposal Company, 124 Wn.2d 656, 672 (1994). 1. Defendants did not have notice that Plaintiff had a disability that required accommodation until May 2014. Defendants did not have notice that Plaintiff needed an accommodation until she gave Fitch or Weber a doctor’s note with restrictions in May 2014. Moreover, Plaintiff admitted she could not even recall asking for any accommodation before May 2014. The facts and outcome of Williams, Garcia, and Hume are particularly instructive on the issue of notice. In Hume, the Washington Supreme Court held that the employer did not have notice of the employee’s alleged medical condition, carpal tunnel syndrome, as required for liability, even though the employee made intermittent complaints of pain in hands and requested transfer to a position that would require less use of hands, because at the time of the requested transfer the employee did not discuss the specific nature of his condition, had not missed any work due to pain in hands and was successfully completing his refuse collection routes in less than 40 hours per week. Hume, 124 Wn.2d at 672 (1994). The court in Williams, citing Hume, found that the same was true where “Ms. Williams never specifically requested an accommodation or informed FedEx that she was disabled.” Williams, 2013 WL 2256227 at *5. Thus, the court found that “it is not enough for the employer Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 23 of 38 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 No. 15-cv-01288-TSZ to simply know that the employee is injured. The employer must be aware of a ‘serious medical condition’ at the time the employee seeks accommodation.” Id. The court found that “FedEx had no investigatory duty to question Ms. Williams regarding any disability it may have suspected she had. … Instead, Ms. Williams had the burden of giving FedEx notice of her disability.” Id. The court in Garcia cited Hume for the same proposition, finding that the plaintiff had only made one reference to her wrist hurting after she was transferred to a new position and before she informed her supervisor that she could no longer work at the position due to her wrist. Garcia, 2013 WL 1561116, at *8. Although the plaintiff assumed it was understood that the purpose of her transfer requests was based on her prior wrist injury and that it was “in her voice” that her wrist hurt, the court found that these facts did not even rise to the level of “intermittent complaints” found to be inadequate notice in Hume. Id. (quoting Hume, 124 Wash.2d at 672). Further, the court found that “although the plaintiff discussed the possibility of a transfer with her supervisor on numerous occasions, there was no indication that the plaintiff discussed her wrist condition and accompanying limitations or even explained that her request for a transfer was because her wrist hurt” and “there was no indication that the plaintiff missed any work or that her productivity suffered due to her wrist.” Id. As was true for the plaintiffs in Hume, Williams, and Garcia, Plaintiff’s failure to accommodate claim fails in this case because, even assuming Defendants knew Plaintiff suffered an alleged injury as a result of the chicken incidentby December 2013 or January 2014, Defendants did not have notice that the injury was presently impairing her job duties, let alone have notice of any disability or aggravation that required accommodation until May 7, 2014. Plaintiff’s testimony confirmed that the first time she gave a doctor’s note to anyone working for Defendants evidencing any restrictions or a need for an accommodation was on May 7, 2014, essentially one week before Plaintiff stopped working on May 15, 2014. The May 2014 note from her doctor only stated that Plaintiff had a temporary restriction regarding the use of Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 24 of 38 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 No. 15-cv-01288-TSZ her right hand and/or elbow, which Weber tried to accommodate by assisting her with chopping. Significantly, Plaintiff did not request a different position in the kitchen as an accommodation, nor would she have been qualified for any other cooking position given that the other positions had to remain at work until 4:00-5:00 p.m., which she could not do, and also required functional use of both arms. Although Plaintiff gave Fitch a medical statement in December of 2013 (which was the first time he became aware that Plaintiff went to a doctor, allegedly, as a result of the Santoyo chicken incident) and Plaintiff told him she thought it should be paid through worker’s compensation, the statement did not say to what it pertained or to what it related, and thus was not sufficient to notify Defendants of a disability or need for accommodation. At the time Plaintiff gave Fitch the medical statement, Plaintiff did not show any signs of injury that affected work performance and Plaintiff admitted that she did not ask for any accommodations. Further, between the time of the injury in September of 2013 and May 2014, Plaintiff testified she missed, at most, one day of work because of the injury. Plaintiff also admitted she was never disciplined by Weber for working too slowly, which might have suggested that he was aware that her productivity was suffering due to some condition. It is not reasonable to assume that Defendants had notice until May of 2014, given the admitted facts in this case. Although Plaintiff may claim that Defendants should have been on notice of her injury because she was showing outward signs of pain to her co-workers (which Defendants deny), Plaintiff also testified that she could go days without even seeing a sous chef or executive chef, including Weber. Moreover, even if Plaintiff claims that her “disability” was apparent to her coworkers, Plaintiff testified that she knew Defendants had an ADA policy for accommodations and that she needed to let a manager or HR know immediately if she had a disability – which she did not. Finally, Plaintiff will likely claim that because she did report hitting her elbow and head during the chicken incident, Defendants knew she had a disability due to their knowledge of any injury. First, Merriam Webster defines “injury” as “harm or damage: an act or event that Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 25 of 38 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 No. 15-cv-01288-TSZ causes someone or something to no longer be fully healthy or in good condition.” While Plaintiff may have reported hitting her elbow or head, she never told any manager that she was even “injured” given that she never reported that she was no longer “fully healthy or in good condition.” Thus, Plaintiff’s admissions support Defendants contention that they did not have notice that Plaintiff had an injury, let alone any disability that needed accommodation, until she brought in the doctor’s note with restrictions on May 7, 2014. 2. Defendants reasonably accommodated Plaintiff after they had notice she needed an accommodation. Defendants accommodated and continue to accommodate Plaintiff’s condition. The only time period Defendants had notice of a condition that needed accommodation was after Plaintiff gave Fitch or Weber the May 2014 note from her doctor, stating that Plaintiff had a temporary restriction regarding cutting or lifting more than ten pounds with her right hand and/or elbow. In the approximately one week that Defendants had notice of Plaintiff’s need for accommodation, Fitch and Weber assisted her with prep duties, and reassigned altogether duties that would aggravate her condition, such as cutting hard items. Thus, Defendants accommodated Plaintiff as specifically prescribed on the doctor’s note for the short period of time she remained working for Defendants. Further, as soon as Plaintiff was released to work on light duty in July of 2014, Defendants offered her a light duty position as a hostess. Plaintiff admitted that she received Fitch’s letter in July offering her the hostess position. Defendants have continued to offer a hostess position any time she was cleared to work. However, despite the fact that Defendants have continued to hold a position open for her, and has tried to encourage Plaintiff return to work, she has refused to do so. The ADA provides that reassignment to a vacant position may be a reasonable accommodation. Kees v. Wallenstein, 973 F.Supp. 1191, 1196 (W.D. Wash. 1997), aff’d, 161 F.3d 13 (9th Cir. 1998), and aff’d, 161 F.3d 1196 (9th Cir. 1998) (citing 42 U.S.C. § 12111(9)(B)). Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 26 of 38 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 No. 15-cv-01288-TSZ In addition, Plaintiff’s doctors have stated that Plaintiff cannot work for Defendants in any capacity now – so there is no way that Defendants could further accommodate Plaintiff. See Kennedy v. Applause, Inc., 90 F.3d 1477, 1480–82 (9th Cir. 1996) (no reasonable fact- finder could conclude that plaintiff could perform essential functions of position where plaintiff stated on disability forms and doctor testified that plaintiff was totally disabled from working). Thus, there is absolutely no evidence to support any claim that Defendants knew or should have known that Plaintiff needed an accommodation until Plaintiff brought in her work restrictions note – which Plaintiff admits is the first time she gave any request for accommodation to either Fitch or Weber. As the EEOC correctly found, when Defendants had notice, they reasonably accommodated Plaintiff. Plaintiff’s claim for failure to accommodate under both the ADA and the WLAD must be dismissed. E. Plaintiff’s Retaliation Claim Under Title VII, the ADA and the WLAD Fails as a Matter of Law The Ninth Circuit has recognized that the framework used to analyze Title VII retaliation claims applies equally to the ADA and the WLAD. Hotchkiss v. CSK Auto Inc., 918 F.Supp.2d 1108, 1125 (E.D. Wash. 2013) (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1121 (9th Cir. 2000) (adopting Title VII analysis for the ADA), overruled on other grounds, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002); Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065 (9th Cir. 2003) (utilizing Title VII analysis for WLAD)). To make out a prima facie case of retaliation under Title VII, Plaintiff must demonstrate that: (1) she engaged in a protected activity: (2) she suffered an adverse employment action: and (3) there was a causal link between her activity and the employment decision. Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065-66 (9th Cir. 2003), as amended (Jan. 6, 2004). If plaintiff is able to assert a prima facie retaliation claim, the “burden shifting” scheme articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. Id. (citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 27 of 38 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 No. 15-cv-01288-TSZ The Ninth Circuit has held that for an action to be “adverse,” it must negatively affect the employee’s compensation, workplace conditions, responsibilities, or status. Woods v. Washington, 475 F.App’x 111, 112 (9th Cir. 2012). Assuming Plaintiff claims that she engaged in protected activity by complaining about Santoyo and/or Rodriguez’s alleged sexual harassment, or asking for an accommodation for her alleged disability, which Defendants deny, she cannot show that she suffered an adverse employment action. As will be discussed below, she cannot establish a constructive discharge claim; therefore that cannot serve as the basis of the alleged materially adverse employment action. Plaintiff did not suffer any adverse employment action, as enumerated in Woods, while employed with Defendants. As argued, supra, Plaintiff never applied for or took any steps to become qualified for a broiler position, and, there were no open positions to which Plaintiff could be promoted. Thus, her failure to be promoted to the broiler position cannot be considered an adverse action. Further, Plaintiff was never subjected to any demotion or pay decrease during her employment; rather, she received three pay increases and a promotion from prep 3 to prep 1 during her employment. Ex A. p. 165-66, 179-180, 272; Ex. B, p. 38. Plaintiff received one corrective action from assistant manager Neil Gowler, which she received two months after any complaints of harassment, after being verbally warned multiple times, and her pay and responsibilities were in no way affected by this discipline. Ex. A, p. 167-169; Ex. B, p. 143; Ex. C, p. 82. See Larmanger v. Kaiser Found. Health Plan of the Nw., 895 F.Supp.2d 1033 (D. Or. 2012), aff’d, 585 F. App’x 578 (9th Cir. 2014) (holding that, although the employee received a corrective action shortly after returning from leave, the company did not retaliate because her supervisor had received numerous complaints about her performance in months leading up to her termination). And, to the extent Plaintiff is contending that the alleged sexual harassers about whom Plaintiff complained, Rodriguez and Santoyo, retaliated against her in any way for reporting their harassment, this claim fails. Plaintiff admits that Rodriguez and Santoyo were not Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 28 of 38 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 No. 15-cv-01288-TSZ managers and that they did not have any authority to demote Plaintiff, lower her pay, change her schedule, or implement any adverse employment act as defined by law. Ex. A. p. 40, 284, 334-35. See Woods, 475 F.App’x at 112 (for an action to be “adverse,” it must negatively affect the employee’s compensation, workplace conditions, responsibilities, or status). Thus, this claim must be dismissed. F. Plaintiff’s Constructive Discharge Claim Fails as a Matter of Law Defendants did not terminate Plaintiff’s employment – in fact, Plaintiff is technically still employed to this day. Ex. A, p. 185-86. Because Plaintiff was never terminated, Plaintiff is alleging she was constructively discharged from her employment with Defendants. To prove constructive discharge, an employee must show that (1) the employer engaged in deliberate conduct which made the employee’s working conditions intolerable; (2) a reasonable person in the employee’s position would be forced to resign; (3) the employee resigned solely because of the intolerable conditions; and (4) the employee suffered damages. Matthieson, 2016 WL 1559580, at *6 (citing Crownover v. State ex rel. Dep’t of Transp., 165 Wash.App. 131, 149 (2011); Allstot v. Edwards, 116 Wash.App. 424, 433 (2003). Intolerable working conditions exist where an employee is subjected to “aggravating circumstances or a continuous pattern of discriminatory treatment” on the part of the employer. Id. (quoting Allstot, 116 Wash.App. at 433). On the other hand, “[a]n employee’s frustration, and even receipts of direct or indirect negative remarks, is not enough to show intolerable working conditions.” Id. (quoting Crownover, 165 Wash.App. at 149). “[N]ot everything that makes an employee unhappy is an actionable adverse action.” Id. (quoting Alonso, 178 Wash.App. at 747). Further, under Washington law, a court must “presume [the] resignation is voluntary and, thus, cannot give rise to a claim for constructive discharge.” Id. at *7 (quoting Townsend v. Walla Walla Sch. Dist., 147 Wash.App. 620, 627 (2008)). “A voluntary resignation occurs when an employee abandons the employment because of a desire to leave.” Id. (quoting Crownover, Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 29 of 38 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 No. 15-cv-01288-TSZ 165 Wash.App. at 149). “A resignation will still be voluntary when an employee resigns because he or she is dissatisfied with the working conditions.” Id. As an initial matter, Plaintiff cannot establish this claim because she has never resigned from her employment - - the seminal element on which this claim is based. Plaintiff knows that she is currently still employed by Defendants and has never been fired, and Plaintiff has never submitted anything to Defendants or told any manager of Defendants that she has resigned. Ex. A, p. 185-86. Even had Plaintiff resigned, she cannot establish that Defendants’ intolerable working conditions were designed to force her to resign. As argued more fully above, Plaintiff’s “harassment” or discrimination claims simply do not rise to the level of “intolerable work conditions,” particularly as adequate remedial action was taken regarding any alleged harassment – shifts were changed to avoid any contact with the alleged harassers Rodriguez and Santoyo, and in the case of Santoyo, his employment was terminated as of October 2013. Ex. A, p. 189. As the conduct of the co-workers cannot be imputed to Defendants, it cannot be said that Defendants deliberately created the alleged intolerable working conditions. Boeing Co., 105 Wash.App. at 16. Moreover, any alleged harassment completely ceased by October 2013 - - eight months before Plaintiff stopped reporting for work. This gap in time would negate any inference that Plaintiff was forced to resign due to this alleged harassment. See Boeing Co., 105 Wash.App. at 16 (holding that while the alleged negative remarks about women and co- worker’s refusal to assist her with certain tasks was frustrating, they do not rise to the level of being so difficult or unpleasant that a reasonable person in Washington’s position would have felt compelled to resign). Further, as also argued more fully above, to the extent Plaintiff contends that Defendants’ failure to accommodate her disability created intolerable work conditions, Plaintiff’s constructive discharge claims fails for the same reason as her failure to accommodate claim. Robertson v. City of Seattle, 122 Wash.App. 1056 (2004). As previously discussed, Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 30 of 38 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 - 26 No. 15-cv-01288-TSZ Plaintiff only remained with Defendants one or two weeks after giving notice of her need for temporary restrictions which necessitated accommodation before she voluntarily stopped working for Defendants, and admitted that she received accommodation after she gave Defendants the note, and admitted that she did not make any complaints of failure to accommodate during that time Defendants had notice of her need for accommodation. Finally, Plaintiff admits that Defendants never said anything to her about terminating her employment and that Defendants have been asking her and trying to get her back to work since she stopped reporting for her shifts. Ex. A, p. 232. In fact, Plaintiff testified that Weber called in May of 2014 a “couple” of times asking her if she was ready to return to work, and Fitch emailed her in June 2014 asking if Plaintiff was doing well. Ex. A, p. 186, 232-33. Moreover, Plaintiff admitted that Defendants have been offering her to return to work since July of 2014 when she was released to work a light duty hostess position, and that the open hostess position for her has never been withdrawn. Ex. A, p. 187-92. Thus, Plaintiff simply cannot support the allegations that Defendants intentionally created intolerable working conditions or that she resigned solely because of intolerable conditions brought on by Defendants. While Plaintiff can decide to refrain from reporting for work at Ruth’s Chris, she cannot use her own choice as a basis for claiming she was constructively discharged. G. Plaintiff’s Negligent Hiring, Supervision and/or Retention Claim Fails as a Matter of Law Plaintiff has no claim for negligent hiring, retention and/or supervision because Defendants used reasonable care in hiring and retaining Santoyo and Rodriguez, and had no knowledge of either employee’s alleged unfitness. Plaintiff has not put forth any evidence that Defendants knew or should have known about Santoyo or Rodriguez’s unfitness before hiring them. Santoyo and Rodriguez worked hourly jobs in the prep kitchen at a Ruth’s Chris restaurant. Defendants do not perform background checks on any hourly employees. Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 31 of 38 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 - 27 No. 15-cv-01288-TSZ Washington employs a type of balancing test to determine if the given employment warrants the extra burden of a thorough background check. Rucshner v. ADT, Sec. Sys., Inc., 149 Wash.App. 665, 682 (2009) (citing Carlsen v. Wackenhut Corp., 73 Wash.App. 247, 256, 868 P.2d 882, 887 (1994); La Lone v. Smith, 39 Wash.2d 167, 172, 234 P.2d 893 (1951) (“One may normally assume that another who offers to perform simple work is competent. If, however, the work is likely to subject third persons to serious risk of great harm, there is a special duty of investigation.”). The balancing test set forth in Rucshner would dictate that it was reasonable for Defendants to decide that the kitchen positions Santoyo and Rodriguez held do not warrant background checks as a kitchen position is not likely to subject third persons to serious risk of great harm. Indeed, no background check was performed on Plaintiff either due to her position. In Plaintiff’s deposition, she essentially conceded that she had absolutely no evidence to support this cause of action. Plaintiff testified that she met Santoyo when she started working for Defendants. Plaintiff did not know and had not heard anything about him before working with him. Ex. A, p. 193-94. Plaintiff admitted that she does not know if Santoyo posed any danger to anyone before being hired. Ex. A, p. 285. Similarly, Plaintiff admitted she has no knowledge whether Rodriguez was unfit to work before Defendants hired him. Ex. A, p. 288. Plaintiff has no evidence that the company had any knowledge that he was unfit to work at any time - - before hiring him or before he left in 2014. With respect to her claims of negligent supervision and retention, “[t]he torts of negligent hiring, supervision, and retention have generally been described as follows: [A]n employer may be liable to a third person for the employer’s negligence in hiring or retaining a servant who is incompetent or unfit. Such negligence usually consists of hiring or retaining the employee with knowledge of his unfitness, or of failing to use reasonable care to discover it before hiring or retaining him.” Haubry v. Snow, 106 Wash.App. 666, 679, 31 P.3d 1186, 1193 (2001). Foreseeability limits the scope of duty owed to a plaintiff. Breitung v. State, Dep’t of Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 32 of 38 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 - 28 No. 15-cv-01288-TSZ Soc. & Health Servs., 183 Wash.App. 1017 (2014), review denied sub nom. Breitung v. State, 182 Wash.2d 1009, 343 P.3d 760 (2015). To the extent that Plaintiff attempts to support her negligent retention claim by referencing one fight Santoyo had with a male acquaintance who worked at a neighboring restaurant, Plaintiff has no personal knowledge of the circumstances surrounding the argument, and the fight did not occur on Defendants’ property. Ex. A, p. 285-86; Ex. B, p. 85. Plaintiff admitted she has no knowledge of Santoyo ever being in an argument with a woman. Ex. A, p. 287-88. Thus, a single incident of fighting between two male acquaintances off Defendants’ property is simply not enough to make it foreseeable that Santoyo would be involved in an argument over a chicken with a female co-worker during work hours and that she would get hurt during such an incident. Thus, these claims must be dismissed. H. Plaintiff’s Negligent Infliction of Emotional Distress Claim is Precluded by the Exclusivity Provision of the Industrial Insurance Act Plaintiff’s claim for negligent infliction of emotional distress (“NIED”) is solely based on the alleged post-traumatic stress disorder resulting from the chicken incident in September of 2013. However, a sudden and tangible traumatic event producing an immediate or prompt result, such as the incident with Santoyo constitutes an industrial injury under the Industrial Insurance Act (“IIA”). Rothwell v. Nine Mile Falls Sch. Dist., 295 P.3d 328, 332-33 (2013). Thus, Plaintiff’s NIED claim is wholly precluded by the exclusivity provision of the IIA. Id. Further, an employee may recover damages for emotional distress in an employment context but only if the factual basis for the claim is distinct from the factual basis for the discrimination claim. Haubry, 106 Wash.App. at 678-79. Because the law will not permit a double recovery, a plaintiff will not be permitted to be compensated twice for the same emotional injuries. Francom v. Costco Wholesale Corp., 98 Wash.App. 845, 864-65, 991 P.2d 1182, 1192 (2000), as amended on reconsideration (Feb. 29, 2000). Plaintiff’s separate claim for emotional distress arises directly from the alleged harassment, which she alleges was Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 33 of 38 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 - 29 No. 15-cv-01288-TSZ discriminatory, and is therefore duplicative. Here, there is no separate compensable claim because the factual basis for the emotional distress claim is the same as the sexual harassment or discrimination claim. Thus, Plaintiff cannot maintain a separate claim for negligent infliction of emotional distress, based on the same facts that support her claim under the law against discrimination, which permits damages for emotional injuries. See Dean v. Municipality of Metropolitan Seattle–Metro, 104 Wash.2d 627, 640–41 (1985). CONCLUSION For the foregoing reasons, Defendants request that all of Plaintiff’s claims against them be dismissed with prejudice, at her cost. DATED this 1st day of September, 2016. JONES WALKER, LLP By: /s/ Laurie M. Riley Laurie M. Riley, Admitted Pro Hac Vice Miami Center 201 Biscayne Blvd. Suite 2600 Miami, Florida 33131-4341 Telephone: 305-679-5728 Facsimile: 305-679-5710 lriley@joneswalker.com\ RYAN, SWANSON & CLEVELAND, PLLC By: /s/ Susan Rae Fox Susan Rae Fox, WSBA No. 15278 Shannon J. Lawless, WSBA No. 43385 1201 Third Avenue, Suite 3400 Seattle, Washington 98101-3034 Telephone: (206) 464-4224 Facsimile: (206) 583-0359 fox@ryanlaw.com lawless@ryanlaw.com Attorneys for Defendants Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 34 of 38 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 - 30 No. 15-cv-01288-TSZ CERTIFICATE OF SERVICE I hereby certify under penalty of perjury under the laws of the State of Washington that on September 1, 2016, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing via the CM/ECF filing system to counsel of record for Plaintiff at the email address described below: Elizabeth A. Hanley WSBA No. 38233 The Hanley Law Firm, PLLC 520 Pike Street Suite 2500 Seattle, Washington 98101 ehanley@thehanleylawfirm.com 206-466-2334 (telephone) 206-340-1936 (facsimile) DATED this 1st day of September, 2016. /s/ Susan Rae Fox Susan Rae Fox, WSBA No. 15278 Attorneys for Defendants 1201 Third Avenue, Suite 3400 Seattle, Washington 98101-3034 Telephone: (206) 464-4224 Facsimile: (206) 583-0359 fox@ryanlaw.com Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 35 of 38 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 27 28 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 1 (15-cv-01288-TSZ) Laurie M. Riley JONES WALKER LLP 201 Biscayne Blvd., Suite 2600 Miami, Florida 22121-4341 Telephone: 305-679-5728 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE HEIDI A. SCHNEEKLOTH, Plaintiff, v. RUTH’S HOSPITALITY GROUP, INC. d/b/a RUTH’S CHRIS STEAKHOUSE, RCSH OPERATIONS, INC., d/b/a RUTH’S CHRIS STEAKHOUSE Defendants. The Honorable Thomas S. Zilly CASE No. 2:15-cv-01288-TSZ [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFF’S COMPLAINT THIS MATTER came before the Court on Defendants Ruth’s Hospitality Group, Inc., d/b/a Ruth’s Chris Steakhouse, and RCSH Operations, Inc., d/b/a Ruth’s Chris Steakhouse's (“Defendants”) Motion for Summary Judgment. The Court has reviewed the Motion and the Declaration of Laurie Riley and exhibit appended thereto, and all evidence submitted in support of and in opposition to the Motion, if any, the pleadings on file, and is fully informed. IT IS HEREBY ORDERED THAT Defendants’ Motion for Summary Judgment is GRANTED. Plaintiff’s Complaint be and hereby is Dismissed with Prejudice. DATED this ______ day of September, 2016. United States District Judge Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 36 of 38 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 27 28 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 2 (15-cv-01288-TSZ) Laurie M. Riley JONES WALKER LLP 201 Biscayne Blvd., Suite 2600 Miami, Florida 22121-4341 Telephone: 305-679-5728 Presented by: RYAN SWANSON & CLEVELAND, PLLC /s/ Susan Rae Fox Susan Rae Fox, WSBA #15278 Shannon J. Lawless, WSBA #43385 1201 Third Avenue, Suite 3400 Seattle, Washington 98101-3034 Telephone: (206) 464-4224 Facsimile: (206) 583-0359 fox@ryanlaw.com lawless@ryanlaw.com Attorneys for Defendants Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 37 of 38 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 27 28 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 3 (15-cv-01288-TSZ) Laurie M. Riley JONES WALKER LLP 201 Biscayne Blvd., Suite 2600 Miami, Florida 22121-4341 Telephone: 305-679-5728 CERTIFICATE OF SERVICE I hereby certify under penalty of perjury under the laws of the State of Washington that on September 1, 2016, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing via the CM/ECF filing system to counsel of record for Plaintiff at the email address described below: Elizabeth A. Hanley WSBA No. 38233 The Hanley Law Firm, PLLC 520 Pike Street, Suite 2500 Seattle, Washington 98101 ehanley@thehanleylawfirm.com 206-466-2334 (telephone) 206-577-3924 (facsimile) DATED this 1st day of September, 2016. /s/ Susan Rae Fox Susan Rae Fox, WSBA #15278 Attorneys for Defendants 1201 Third Avenue, Suite 3400 Seattle, Washington 98101-3034 Telephone: (206) 464-4224 Facsimile: (206) 583-0359 fox@ryanlaw.com Case 2:15-cv-01288-TSZ Document 71 Filed 09/01/16 Page 38 of 38